COURT FILE NO.: CV-22-00688949-0000

DATE: 20230421

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SEYED MANSOUR HOSSEINI

Plaintiff

• and -

HAMID GHARAGOZLOO

Defendant

Peter Doyun Kim and Mehrnaz Asad for the Plaintiff

James Bunting, Adam Soliman, and Anna White for the Defendant

HEARD: March 28, 2023

PERELL, J.

REASONS FOR DECISION

Contents

A. Introduction. 2

1. Procedural and Evidentiary Background. 4

B. Factual Background. 7

1. Historical Background. 7

2. Hamid Gharagozloo. 8

3. Reza Tabandeh. 9

4. Seyed Mansour Hosseini 9

5. The Relationship between Mr. Hosseini and Reza Tabandeh. 10

6. The Alleged Defamatory Statements. 11

7. Miscellaneous Factual Matters. 17

C. Background Law.. 18

1. Defamation, Defamatory Meaning, and Defences. 18

2. Anti-SLAPP Motions. 20

D. Discussion and Analysis. 25

1. The Positions of the Parties. 25

2. Did Mr. Gharagozloo Speak on a Matter of Public Interest?. 27

3. The Relevance of Videos #3, #4, and #5. 27

4. Are there Grounds to Believe that Mr. Hosseini’s Proceeding has Substantial Merit?. 29

5. Has Mr. Hosseini Shown that Mr. Gharagozloo has no valid defence?. 32

6. Has Mr. Hosseini Shown that the Public Interest in Permitting his Proceeding to Continue Outweighs the Public Interest in protecting Mr. Gharagozloo’s Expression?. 33

7. The Matter of Costs. 34

E. Conclusion. 35

A. Introduction

[1] On June 29, 2022, in a righteous mission to expose the human rights abuses of the tyrannical Iranian Government and its crimes against religious groups, the Defendant, Hamid Gharagozloo, presented a short documentary video at a foreign affairs conference in Washington, D.C., (the “Summit”). The video was produced by IOPHR (the “International Organization to Preserve Human Rights”), of which Mr. Gharagozloo is a prominent member.

[2] The documentary video, which is labelled Video #2 in the Statement of Claim, identifies Dr. Reza Tabandeh, who is a resident of Ontario, Canada, as one of seven main co-conspirators that plotted the house arrest and assassination of Dr. Noor Ali Tabandeh, the spiritual leader of a minority Islamic religious group, known as the Gonabadi Sufis, in order to have him replaced by a leader acceptable to the Iranian Government.

[3] In a span of approximately 4.0 seconds, Video #2 twice displays a photographic image of Dr. Reza Tabandeh, one of the alleged plotters, standing beside the Plaintiff, Seyed Mansour Hosseini.

[4] Also on June 29, 2022, there is a second video produced by IOPHR. This video is labelled Video #1 in the Statement of Claim. In Video #1, Mr. Gharagozloo reports about his presentation of Video #2 at the Summit. During Video #1, Video #2, with its depiction of Mr. Hosseini is playing in the background.

[5] On August 8, 2022, Mr. Gharagozloo appears in an Internet TV broadcast and again reports on the Summit. The video of this appearance is labelled Video #3 in Mr. Hosseini’s affidavit and factum but not in his Statement of Claim. Once again, the photo of Dr. Reza Tabandeh standing beside Mr. Hosseini is quickly displayed during the course of Video #3.

[6] On August 10, 2022, Videos #1, #2, and #3 came to the attention of Mr. Hosseini. He takes the meaning of the publication of his photographed image in the videos to be that he was a co-conspirator and supporter of Dr. Reza Tabandeh. Within days, Mr. Hosseini retains litigation counsel whom he instructs to demand that (a) Mr. Gharagozloo apologize; (b) remove the postings on the Internet of Videos #1, #2, and #3, failing which Mr. Hosseini will sue for defamation. Mr. Hosseini’s litigation counsel emails a cease and desist letter on August 12, 2022.

[7] Mr. Gharagozloo does not receive the email message with the letter attached, but somehow, he becomes aware of the lawyer’s letter that Mr. Hosseini has posted a copy on his own Instagram account. At the time of first seeing the lawyer’s letter, Mr. Gharagozloo does not know Mr. Hosseini and he has no reason or any evidence or any basis to believe that Mr. Hosseini is a co-conspirator or involved in the activities of the Iranian Government. However, rather than responding to Mr. Hosseini’s lawyer’s letter with a message that the photo in the videos had no defamatory meaning vis-à-vis Mr. Hosseini and none was intended, Mr. Gharagozloo takes umbrage. He prepares a video of his own. This video is labelled Video #4 in Mr. Hosseini’s affidavit and factum but not in his Statement of Claim.

[8] Video #4 is posted on social media and on Dorr TV on August 28, 2022. This video, which is produced by Mr. Gharagozloo shows him delivering a speech in Farsi. In Video #4, Mr. Gharagozloo disparages Mr. Hosseini’s lawyer’s letter and invites a lawsuit in which he will prove the truth of his allegations and which will have dire consequences for Mr. Hosseini.

[9] Video #4 is followed on September 2, 2022, by Video #5, which again is labelled as such in Mr. Hosseini’s affidavit and factum but not in his Statement of Claim. Video #5 is a recording of a broadcast of an appearance by Mr. Gharagozloo on a Dorr TV show hosted by Ms. Hafezi of Dorr TV. Mr. Gharagozloo appears with Mr. Sajedi, legal counsel for IOPHR. On Video #5, they mock Mr. Hosseini. They mock Mr. Hosseini’s litigation lawyer. They invite Mr. Hosseini to bring on his defamation action. They threaten dire consequences to Mr. Hosseini by the revelations that will follow in open court. They say that they are calling Mr. Hosseini’s bluff. In the video, Mr. Gharagozloo states that Mr. Hosseini is Dr. Reza Tabandeh’s advisor and that if you want to understand Mr. Hosseini you must know about Dr. Reza Tabandeh.

[10] Thus, in Videos #4 and #5, Mr. Gharagozloo gives life to the innuendo that Mr. Hosseini’s lawyer had asked him to put to death. These videos, in turn, are followed by eight more videos, Videos #6 to #13, which are produced and broadcast by Dorr TV. The eight additional videos do not involve Mr. Gharagozloo but do continue to discuss Mr. Hosseini and connect him with the plot to assassinate and replace Dr. Noor Ali Tabandeh.

[11] Mr. Hosseini picks up the gauntlet dropped in Videos #4 and #5. He accepts Mr. Gharagozloo’s invitation to sue. Mr. Hosseini sues Mr. Gharagozloo for defamation with respect to Videos #1, #2, #3, #4, and #5. Ironically. it turns out that it is Mr. Gharagozloo who is bluffing. Having invited Mr. Hosseini’s lawsuit and while having the belief that Mr. Hosseini’s defamation action has the improper purpose of shutting down the exposure of Dr. Reza Tabandeh’s evil deeds, Mr. Gharagozloo no longer extends his invitation to have the truth revealed in court. Mr. Gharagozloo brings an anti-SLAPP motion, and he doubles down by claiming damages based on his belief that Mr. Hosseini’s lawsuit is not a genuine effort by an innocent person to protect his reputation.

[12] Further, Mr. Gharagozloo submits that Mr. Hosseini’s defamation action is confined to Videos #1 and #2, because the other videos are not properly pleaded. Mr. Gharagozloo denies that Mr. Hosseini’s defamation action has any merit and asserts that it is subject to dismissal pursuant to s. 137.1 of the Court of Justice Act.[^1] In his motion, Mr. Gharagozloo challenges Mr. Hosseini’s credibility and submits that Mr. Hosseini has been disingenuous about his close friendship relationship with Dr. Reza Tabandeh and that Mr. Hosseini should pay damages for his bringing the defamation lawsuit for the improper purpose of protecting Dr. Reza Tabandeh.

[13] For the reasons that follow, Mr. Gharagozloo’s motion is dismissed with costs. For the reasons that follow, unless the parties settle, Mr. Hosseini’s action should be allowed to continue.

1. Procedural and Evidentiary Background

[14] As described later in these Reasons for Decision, Mr. Hosseini discovered the alleged defamatory statements on August 10, 2022.

[15] Mr. Hosseini retained counsel, and on August 12, 2022, his counsel wrote a cease and desist letter and a demand for an apology.

[16] On September 1, 2022, Mr. Hosseini issued a libel notice under the Libel and Slander Act.[^2]

[17] On October 20, 2022, Mr. Hosseini commenced his defamation action against Mr. Gharagozloo. His Statement of Claim is set out below, with my emphasis added in bold. I have added the emphasis to address later in the analysis portion of these Reasons for Decision, Mr. Gharagozloo’s argument - with which I disagree - that Mr. Hosseini’s defamation action is exclusively prescribed by Videos #1 and #2. For present purposes, the pertinent parts of Mr. Hosseini’s Statement of Claim are as follows:

CLAIM

1. The Plaintiff, Seyed Mansoor Hosseini (the “Plaintiff”) claims against the Defendant, Hamid Gharagozloo (the “Defendant”):

(a) Damages in the amount of $700,000.00 CAD with respect to a series of false and defamatory statements that the Defendant has made against the Plaintiff;

(b) Special damages in the amount to be determined;

(d) A mandatory injunction requiring the Defendant to remove or cause to be removed from Instagram accounts, YouTube accounts, Pearl TV’s (a.k.a Dorr TV) and its Telegram and YouTube Channel, Twitter Account(s) or other locations on the Internet that all the defamatory statements concerning the Plaintiff the Defendant has posted or caused to be posted on those websites/accounts or other locations;

(e) A public apology from the Defendant for the publication of the defamatory allegations on the above-mentioned platforms;

False and Defamatory Statements

6. As described below, the Defendant has engaged in a vicious, carefully orchestrated and unlawful campaign of defamation against the Plaintiff. His campaign of defamation, which has been carried out on various online platforms, has been planned with malice, for the express purposes of publicly embarrassing the Plaintiff, harming his reputation in his community, both religious and residential, and tarnishing his career with the ultimate goal of ejecting him out of Gonabadi Sufi.

(a) VIDEO #1

7. On or about August 10, 2022, the Plaintiff discovered a video (“Video #1”), four minutes and thirty-eight seconds long, in which the Defendant appeared and narrated. In Video #1, the Defendant claimed that he was attending the Convening of a Coalition for International Religious Freedom (the “Summit”) and was reporting from the same. The background in Video#1 also suggested that the video was recorded while the Defendant was in the Summit.

8. The Summit was apparently held for three days – both in person and virtually – between June 28 to June 30, 2022, in Washington D.C. The purpose of the Summit was to gather different religious groups and promote the freedom of religion.

9. An important constituency, both in size and in prominence, of people, including, inter alia, the United States Speaker of the House of Representatives, Nancy Pelosi, the Former United States Secretary of State, Michael Pompeo, dozens of American senators, congressmen and congresswomen, such as Senator Marco Rubio and Congressman French Hill as well as members of Parliaments of the United Kingdom and Finland attended the Summit (the “Audience”).

10. In Video #1, the Defendant admitted that he made a presentation at the Summit, during which he played a video (“Video #2”), for the Audience. The Defendant then claimed that during his presentation, he spoke about 43 years of the Islamic Regime of Iran’s (the “Regime”) brutal attack on the Gonabadi Sufis, the alleged assassination of three Gonabadi Sufi Masters, and the unlawful arrests of many Gonabadi Sufis in Iran.

11. In Video #1, the Defendant then proceeded to claim that during the Summit, he “unmasked” 7 agents of the Regime who allegedly played a key role in the above-mentioned brutal activities. During his narration, a picture of the Plaintiff was publicly displayed/shown (at 1:22), falsely implying that he was associated with the above-mentioned ruthless activities.

12. The Defendant then shared or allowed Video #1, which was made by him, to be shared online on the accounts that the Defendant owned, had control of, was associated with and/or was frequently represented or promoted by, including, inter alia, on Instagram (such as info.sufi, drdadrashfathi, afshin.sajedi, and etc), Twitter, YouTube, Pearl TV and Pearl TV’s Instagram, Telegram and YouTube Channel.

(b) VIDEO #2

15. Upon the discovery of Video #1, the Plaintiff investigated the above-mentioned platforms and found Video #2, which, according to the Defendant’s in Video #1, was shown to the Audience during his presentation at the Summit.

16. Video #2 was ten minutes and fifty-seven seconds long and narrated by an unknown female voice. While the narrator spoke, many pictures and clips that were supposedly related to the content of the video were displayed in the background.

17. In Video #2, the female narrator alleged that the Regime, and particularly, its head of state, the Supreme Leader of Iran, Ali Khamenei, has infiltrated and taken over the Gonabadi Sufis. The narrator further alleged that in or about February 2018, the Regime, through their infiltrated agents, including tens of thousands of besieges who pretended to be Gonabadi Sufis, put the then Master of the Gonabadi Sufi, Mr. Tabandeh, under house arrest, and eventually, after two years of repeatedly poisoning him, assassinated him.

18. During the period of time in which the female narrator advanced the above statements with respect to the besieges’ cruel and violent activities, a picture of the Plaintiff was intentionally shown (at 8:00) to imply that the Plaintiff was one of the alleged Iranian besieges who pretended to be a Gonabadi Sufis but committed terrorist activities against the members and the Master of the Gonabadi Sufi.

19. Similar to Video #1, Video #2 did not provide any support for the defamatory and harmful statements against the Plaintiff. Nonetheless, Video #2 was likewise shared on various online accounts that the Defendant owned or had control of, was associated with, and/or was frequently represented or promoted by including, inter alia, on Instagram (such as info.sufi, drdadrashfathi, afshin.sajedi, and etc), Twitter, YouTube, Pearl TV and Pearl TV’s Instagram, Telegram and YouTube Channel.

20. Those online accounts on which the video shared pertained, inter alia, Instagram, Twitter, YouTube, and various online platforms that Dorr TV broadcasts its programs from. In other words, in addition to the Audience, Video #2 has reached and continues to reach at least hundreds of thousands of people, if not millions to date.

21. Subsequent to broadcasting Video #1 and Video #2 on Pearl TV multiple times, the Defendant was invited to Pearl TV continually for further comments and discussions about the Summit and the alleged unmasking of the Regime’s agents and their identity, which included the identity of the Plaintiff. During their discussions, however, the Defendant did not offer any supporting evidence beyond his bald and baseless accusations.

Notice Of Defamation

22. Smearing the Plaintiff with false allegations was not only harmful to the Plaintiff’s career and reputation within his community, but also imposed a real and serious risk of harm to him and his family.

23. In an effort to mitigate the damages caused by the Defendant, on or about August 12, 2022, the Plaintiff, served the Defendant in person with a notice of cease and desist with respect to the unlawful, malicious and destructive false allegations made by him against the Plaintiff pursuant to section 5 of the Libel and Slander Act, R.S.O. 1990, c. L. 12. In the said notice, the Plaintiff expressly notified the Defendant that his allegations were false and defamatory, and sought the immediate publication of an apology and retraction.

24. In response to the notice, the Defendant posted another clip on various online platforms, where he stated that he stood by his allegations and welcomed any lawsuits against him. In the caption of the clip, the Defendant further defamed the Plaintiff and alleged that the Plaintiff played a key role in the house arrest of the previous Gonabadi Sufi Master. No apology and/or retraction was published by the Defendant.

Libel, Defamation, And/Or Slander Causing Loss of Reputation

25. The Plaintiff states that the accusations against him with respect to his association with the Regime and involvement in brutal and terroristic activities are completely false. The Plaintiff pleads that the Defendant defamed and slandered him and continues to do the same through the discussed, disclosed, conveyed, and/or disseminated false allegations, which were made and broadcast to hundreds of thousands of people, if not millions in Iran and abroad.

26. As a result of the Defendant’s defamatory statements, videos, and posts on various online platforms, the Plaintiff has suffered and continues to suffer harm and damage. The malicious and false allegations made by the Defendant against the Plaintiff were calculated to impugn the Plaintiff’s reputation and integrity and thereby isolate him from his community and Gonabadi Sufis. The Defendant’s vexatious campaign against the Plaintiff will inflict a long-lasting effect on the Plaintiff’s reputation, career, and religious status among Gonabadi Sufis.

27. Due to the fear of being recognized from the above-mentioned videos and harassed, the Plaintiff and his family have refrained from attending Iranian stores, restaurants, or religious centres for prayers. In other words, the Plaintiff has been unfairly and unjustifiably isolated from his community due to false and baseless allegations by the Defendant.

28. Throughout the relevant period, the Defendant has acted in a callous, supremely arrogant, contumacious, and egregious manner for the purpose of profiting and gaining more audience at the direct expense of the Plaintiff’s reputation and safety. The Plaintiff pleads that the Defendant has engaged in a conscious effort to intensify and perpetuate his attacks on him without any regard for the truth of his allegations.

29. Even after having been served with the Plaintiff’s notice, the Defendant has continued to maintain, update, and advertise their defamatory posts, and to publicize and disseminate his false and defamatory statements concerning the Plaintiff. His conduct is shocking and oppressive and offensive to the sense of decency.

30. The Plaintiff’s reputation, including his reputation among Iranians as well as the Gonabadi Sufi community, has been harmed due to the publication and re-publication of the Defendant's false and defamatory statements on various online platforms.

31. The Plaintiff pleads that the Defendant is strictly liable for his misconduct in publishing the false and defamatory comments. The Plaintiff further pleads that the Defendant's malice is plain and obvious in light of the contents of the defamatory comments, and the videos.

[18] On December 23, 2022, Mr. Gharagozloo brought his anti-SLAPP motion supported by his affidavits dated December 22, 2022 and January 31, 2023.

[19] Mr Hosseini resisted the motion with an affidavit dated January 20, 2023.

[20] On February 7, 2023, Mr. Hosseini and Mr. Gharagozloo were cross-examined.

[21] The parties delivered facta and the anti-SLAPP motion was argued on March 28, 2023. I reserved judgment.

B. Factual Background

1. Historical Background

[22] In 1979, there was a revolution in the Imperial State of Iran. At that time, a monarchical government lead by the Shah of Iran, Mohammed Reza Pahlavi, was overthrown and replaced by the theocratic government of Ruhollah Khomeini, a religious cleric. The rebels established the present day Islamic Republic of Iran.

[23] Within Iran, live the Nematollahi, a minority Islamic religious group, which has three main branches, the largest of which is the Gonabadi Sufis (also known as Gonabadi Dervishes). Since the revolution, the Iranian government has persecuted the Sufis. Their monasteries have been destroyed, and thousands of Sufis have been dismissed from employment, arrested, imprisoned, and tortured, and some have been executed.

[24] In 2018, the spiritual leader, “Qutb” of the Gonabadi Sufi order was Dr. Noor Ali Tabandeh, who was then in his nineties. Dr. Noor Ali Tabandeh had succeeded his brother Mahboub Ali-Shah as Qutb. In February 2018, the Iranian Government placed Dr. Noor Ali Tabandeh under house arrest in the custody of Seyed Alireza Jazbi Tabatabaei. Almost two years later on December 24, 2019, at the age of 92, Dr. Noor Ali Tabandeh died while under house arrest.

[25] Mr. Gharagozloo believes that the death was caused by months of deprivation, poisoning, and medical malpractice, a practice employed by the Iranian Government to cover up the murders of religious activists. It is Mr. Gharagozloo’s belief that during Dr. Noor Ali Tabandeh’s house arrest, the Iranian Government interfered with Dr. Tabandeh’s choice of successor and arranged that Seyed Alireza Jazbi Tabatabaei, who was loyal to the government, would be appointed as successor Qutb.

2. Hamid Gharagozloo

[26] After the revolution in Iran, Mr. Gharagozloo’s family left the country to live in exile in the United States. He now lives in Richmond, Virginia, USA.

[27] Mr. Gharagozloo has a B.Sc. and two M.Sc. in chemical and industrial engineering and in operations research and statistics. He is the president and founder of Nest, LLC, a commercial real estate investment and development company that manages large-scale construction and oversees property development.

[28] Because of his experience as a persecuted minority, Mr. Gharagozloo became a human rights activist for the religious minorities and ethnic groups that have been persecuted by the Iranian government. Mr. Gharagozloo is a representative of the International Organization to Preserve Human Rights (“IOPHR”), which is a United Kingdom NGO that organizes conferences, lectures, and seminars about human rights issues.

[29] Mr. Gharagozloo is also the Chair of the Iran Working Group of the Office of International Religious Freedom (“IRF”) Roundtable. The IRF is a policy lobby for U.S. foreign relations. On human rights issues, Mr. Gharagozloo has been a speaker or panelist at symposia hosted by the UK Parliament, the Washington Institute for Near East Policy, the Brookings Institution, and the Ronald Reagan Presidential Foundation and Institute.

[30] At some time prior to the summer of 2022, Mr. Gharagozloo researched and the IOPHR produced a ten-minute documentary video, which Mr. Hosseini labels in his Statement of Claim “Video #2.”

[31] Between June 28 to June 30, 2022, in Washington D.C., there was a meeting of the Coalition for International Religious Freedom (the “Summit”). At the invitation of Samuel D. Brownback, former US Ambassador at Large for International Religious Freedoms, Mr. Gharagozloo is invited to be a speaker at the conference. On June 29, 2022, Mr. Gharagozloo makes a speech and presents Video #2 at the Summit. The video discusses, among other things, the Government of Iran’s house arrest and murder of Dr. Noor Ali Tabandeh.

[32] In his affidavit for this motion, Mr. Gharagozloo stated that he believes that through his defamation action, Mr. Hosseini is intentionally attempting to silence Mr. Gharagozloo’s speech on an important matter of public interest. In his affidavit, Mr. Gharagozloo states:

3. Moreover, I have reason to believe that the Plaintiff either directly or on behalf of the Regime is seeking to silence my advocacy on behalf of persecuted groups within Iran. In this respect, the Plaintiff, who was unknown to me at the time of the Summit, appears for less than two seconds in a video that I showed at the Summit, and in a video of me summarizing my presentation shortly after the Summit. He is not mentioned by name and is not discussed in any way. Months after the Summit, he posted a libel notice on his Instagram account, after which I discovered that the Plaintiff has ties to Regime officials and senior members of the ruling clergy and has a history of speaking publicly in support of those loyal to the Regime.

4. The Plaintiff’s public campaign against me and the IOPHR, whether directly or on behalf of others could have the effect of preventing human rights organizations in Canada and the United States – like the IOPHR – from holding the Regime accountable for its gross human rights violations and public misfeasance. Indeed, if the Plaintiff’s claim is allowed to proceed, it will be an impediment to the legitimate voices of persecuted Iranians who are being violently oppressed and/or killed and rely on human rights advocates to make their stories public. These groups include Iranian women, Atheists, Bahá’ís, Christians, Jewish Iranians, Sunni Muslim Iranians, Zoroastrians, and members of the LGBTQ+ community, many of whom are executed by the Regime for their beliefs.

5. Protecting these groups is the IOPHR’s mandate and the focus of my career.

6. Based on my decades of experience as a human rights advocate liaising with government officials and lawmakers, I believe that allowing the Plaintiff’s claim to continue would directly or indirectly aid in the Regime’s suppression and intimidation of human rights advocates in Canada, the US, Iran, and elsewhere.

3. Reza Tabandeh

[33] Reza Tabandeh is the son of the late Mahboub Ali-Shah, a Gonabadi Sufi Qutb who was succeeded by his brother the late Dr. Noor Ali Tabandeh. Reza is thus the nephew of the late Dr. Noor Ali Tabandeh.

[34] Dr. Reza Tabandeh’s LinkedIn page indicates that he graduated from St. Xavier Catholic High School in Mississauga in 2002 and then obtained degrees in religious studies from York University, B.A. (2005), University of Toronto, M.A. (2007), University of Exeter (Mississauga, Ontario, campus), Ph.D. (2008). He has been a teaching assistant at York University and the University of Toronto. He currently is a post-doctoral fellow at the University of Toronto (since 2014) and a researcher and sessional lecturer at Brock University (since 2018).

[35] As described and discussed further below, it is Mr. Gharagozloo’s belief that Dr. Reza Tabandeh was one of the seven main co-conspirators who plotted and carried out an assassination of Dr. Noor Ali Tabandeh in furtherance of a plot to have him replaced with a spiritual leader satisfactory to the Iranian Government.

4. Seyed Mansour Hosseini

[36] Mr. Hosseini was born in Iran, and he received a degree in chemical engineering from Shiraz University. In 2006, he and his ex-wife moved to Canada. They have a now teenage son. Mr. Hosseini is now divorced. He is a devout Gonabadi Sufi, which he became after he moved from Iran to Canada.

[37] After immigrating to Canada, he was hired as an engineer in the oil and gas industry, where he worked until 2016, when he was laid off. He then worked as an Uber driver, and he tried two business endeavours that were unsuccessful. About eight months ago, he was rehired as a piping lead engineer and resumed his career as an engineer.

[38] Although there is evidence that in two letters, Mr. Hosseini has publicly expressed his opinion about the situation in Iran, he deposed that he did so as a private citizen and not as a public figure. In his letters, Mr. Hosseini expresses his opinion that after Dr. Noor Ali Tabandeh’s death, Seyed Alireza Jazbi Tabatabaei, who had a long association with Dr. Noor Ali Tabandeh, was chosen to be his successor in accordance with the late Dr. Noor Ali Tabandeh’s wishes.

[39] Mr. Hosseini deposed that he does not support the Iranian Government’s persecution of religious minorities and dissidents, and its violent attacks on the Gonabadi Sufis. He says that he supports any activism in relation to speaking about the violation of human and religious rights in Iran. However, he says that the activists should not promote lies that harm innocent people’s lives and reputations. Mr. Hosseini says that activists should not abuse social media platforms to spread false information baselessly for their own personal or status gains, which he accuses Mr. Gharagozloo of doing.

[40] In his affidavit, Mr. Hosseini explained why he commenced this action against Mr. Gharagozloo; he stated:

4. I brought my action because the Defendant, without any justification or evidence, showed my picture and likeliness at a public international event called Convening of Coalition for International Religious Freedom (the “Summit”) and presented me as someone with links to Iran's Islamic Regime (the "Regime”) who participated in the house arrest and subsequent assassination of our former Gonabadi Sufi Leader […]. Furthermore, he promoted his lies on various social media, which resulted in other people adopting and believing the same and eventually, making even bigger lies.

5. When my lawyer wrote a letter to the Defendant asking him to remove my pictures and clear my name, the Defendant responded by mocking the letter and going as far as denying my lawyer’s existence, accusing him of working with the Regime and discrediting his letter publicly with the help of an international organization called the International Organisation to Preserve Human Rights (the “IOPHR”).

6. Due to the significance of the Summit and its attendees […] and the Defendant’s influence in the community, particularly as he holds himself as a human rights activist who is backed by the IOPHR, his false words have had publicly carried more weight and influence as opposed to my own constant denial of his accusations. Being damaged and unheard in my defence, I was left with no reasonable alternative but to turn to this Honourable Court for remedies.

5. The Relationship between Mr. Hosseini and Reza Tabandeh

[41] Mr. Gharagozloo accuses Mr. Hosseini of intentionally hiding that he is a “close friend” of Dr. Reza Tabandeh. Mr. Gharagozloo submits that Mr. Hosseini has not been candid and forthcoming and only admitted under cross-examination that: he socializes with Reza; he hikes with Reza, he attended the same events as Reza; he has dined with Reza; he has been to Reza’s home on several occasions; and he has been at Reza’s mother’s house for a meal.

[42] The nature of friendship is a philosophical topic, and philosophers have discussed its nature through the millennia. For Aristotle and the ancient Greek philosophers, friendship was a kind of love in which the friends love each other for their own sake, and they wish good things for each other. In the immediate case, there is no evidence that Mr. Hosseini loves Dr. Reza Tabandeh as his friend, but more to the point, even if Mr. Hosseini was a close friend of Dr. Reza Tabandeh, it does not follow that Mr. Hosseini supported the alleged but not proven evil deeds of the seven main co-conspirators that allegedly include Dr. Reza Tabandeh.

[43] It is not relevant or legally significant whether Mr. Hosseini and Dr. Reza Tabandeh are close friends. They are certainly acquaintances, but the significant matter in the immediate case is not whether they are friends, buddies, mates, chums, or pals, but the significant matter is whether there is evidence that their relationship establishes that Mr. Hosseini is a supporter of one of the plotters of the assassination and replacement of Dr. Noor Ali Tabandeh.

[44] In the immediate case, Mr. Gharagozloo has provided no evidence to establish that Mr. Hosseini had anything to do with the assassination of Dr. Noor Ali Tabandeh. He has provided no evidence that Mr. Hosseini is an agent of the tyrannical Iranian government. He has provided no evidence that Mr. Hosseini was a co-conspirator. The contacts between Mr. Hosseini and Dr. Reza Tabandeh all occurred in Canada and do not depict any wrongdoing. As for the matter of Mr. Hosseini being coy about the intensity of his relationship with Dr. Reza Tabandeh, this is understandable. Questioning him about their relationship was a clever ploy by Mr. Gharagozloo’s counsel. If Mr. Hosseini admitted that he had a loving relationship of genuine friendship, then that would feed the inference that he was a co-conspirator or a supporter of the allegedly evil Dr. Reza Tabandeh. If Mr. Hosseini was less than forthcoming, then that would feed the inference that Mr. Hosseini was hiding something damaging and in any event his credibility would be besmirched.

[45] For present purposes, the points to take away are threefold.

[46] First, parents, relatives, close friends, teachers, etc. may be shocked, dismayed, disappointed, ashamed, and aggrieved to learn what their children, relatives, close friends, or students have done, but the parents, relatives, close friends, and teachers are not guilty by mere association.

[47] Second, even if it was proven: (a) that Mr. Hosseini was a close friend of Dr. Reza Tabandeh and (b) that Dr. Reza Tabandeh was responsible in some way for the death of Dr. Noor Ali Tabandeh, those proven facts would not prove that Mr. Hosseini was implicated in Dr. Reza Tabandeh’s alleged wrongdoing.

[48] Third, Mr. Gharagozloo’s submissions about Mr. Hosseini’s lack of candour about the intensity of his relationship with Dr. Reza Tabandeh is a just a distraction from the real issue of whether Mr. Gharagozloo can support his allegation, which he makes in Video #5 that Mr. Hosseini is a devotee of Dr. Reza Tabandeh one of the architects of Dr. Noor-Ali Tabandeh’s removal and house arrest and finally his martyrdom.

6. The Alleged Defamatory Statements

[49] At some time prior to the summer of 2022, Mr. Gharagozloo researched and the IOPHR produced an approximately eleven-minute documentary video, which Mr. Hosseini labels in his Statement of Claim “Video #2.” Between June 28 to June 30, 2022, in Washington D.C., there is a meeting of the Coalition for International Religious Freedom (the “Summit”).

[50] On June 29, 2022, Mr. Gharagozloo makes a speech at the Summit. During Mr. Gharagozloo’s speech he shows Video #2, the 10 minute and 57 second (10:57 minutes) video produced and published by the IOPHR. The video is an English language documentary about the forty-three years of oppression of Sufis in Iran by the Iranian Government. Mr. Gharagozloo’s speech includes a discussion about the various covert and malicious activities carried out by the Iranian Government in the US, Canada, UK, EU, Iran, and elsewhere.

[51] In Video #2, the narrator, an unidentified woman, discusses covert efforts taken by seven co-conspirator agents of the Iranian Government to assassinate Dr. Ali Noor Tabandeh and to appoint a regime loyalist as his successor. Mr. Gharagozloo researched and confirmed the accuracy of all the information in the video and in his speech about the activities of the Iranian Government and the seven conspirators.

[52] In Video #2, the narrator describes the Iranian Government’s suppression of human rights and its persecution of religious minorities, such as the Gonabadi Sufis. She reports that there are tens of thousands of "basijis” who pretend to be Sufis to infiltrate the Gonabadi Sufis. She describes a campaign to isolate and harm Dr. Noor Ali Tabandeh and to replace him with a Qutb who is loyal to the Iranian Government. She identifies the seven “main” conspirators as: Gholam Reza Harsini, Mir Yunes Jafari, Ali Reza Jazbi, Hussein Ali Kahani, Shahram Pazuki, Mohammed Tabandeh (another nephew of Dr. Noor Ali Tabandeh), and Dr. Reza Tabandeh.

[53] I pause to say that there is nothing in Video #2 that indicates what role was played or was to be played by Dr. Reza Tabandeh in the plot to assassinate and replace his uncle Dr. Noor Ali Tabandeh.

[54] During Video #2, there is a video clip of two seconds duration that is shown twice during the video. The video clip shows Dr. Reza Tabandeh standing by two individuals. In the photograph, standing to the left of Dr. Reza Tabandeh is Mr. Hosseini. The video does not name Mr. Hosseini nor the other individual in the photo,[^3] but all three men appear under the caption: “Main co-conspirators to murder, the spiritual leader of the Gonabadi Sufis – Reza TABANDEH.”

[55] The viewer of the video clip would not know that the video photograph was taken three years earlier at the memorial service for Dr. Noor Ali Tabandeh in 2019 at the Vali Asr Islamic Centre in Markham, Ontario, a service at which the Ontario Sufi community attended, including Dr. Reza Tabandeh and Mr. Hosseini. Mr. Hosseini says he and Dr. Reza Tabandeh were greeting attendees arriving at the memorial service for Dr. Reza Tabandeh’s uncle.

[56] On June 29, 2022, what is labelled Video #1 in Mr. Hosseini’s Statement of Claim is posted on the Internet. Video #1 is four minutes and thirty-eight seconds in length (4:38 minutes). Video #1 video is narrated by Mr. Gharagozloo and appears to be produced and published by the IOPHR. In Video #1, Mr. Gharagozloo speaks in Farsi. He reports from Washington on his attendance at the Summit. As was the case with Video #2, nothing is said about Mr. Hosseini in Video #1. However, within Video #1, Video #2 with its depiction of Mr. Hosseini is displayed on a large screen beside Mr. Gharagozloo. In Video #1, the video clip from Video #2 is displayed once. A translation of Mr. Gharagozloo’s narration of Video #1 follows:

With regards, I am Hamid Gharagozloo from the International Organisation to Preserve Human Rights on the second day of the international annual meeting of freedom of thought and religion in Washington.

Yesterday, a film by the International Organisation to Preserve Human Rights was broadcasted about the 43 years of crimes committed against the Nematollahi Gonabadi order and the Gonabadi dervishes, as well as the martyrdom of three sole masters of this order and a large number of dervishes who are still in prison and about the crucial part of seven persons, termites, [that] play a key role, led by Mohammad Tabandeh and Hossein Ali Kashani, who each played their own role to the house-arrest and imprisonment of Dr. Tabandeh and in his martyrdom.

Also, the role of people like […] And most importantly about Shahram Pazuki and his sinister plans during the past few decades, in order to fix the academic credibility and character for Reza Tabandeh, who [Pazouki planned to] become the future Sufi master of the order. And the role of Reza Tabandeh himself in those issues, I discussed with the head of the Commission for Freedom of Opinions and Religions and two employees of the Ministry of Foreign Affairs about the nefarious plans that the regime has through Shahram Pazouki and Reza Tabandeh to make the order a governmental order and also to make the order ISIS-like order, the relationship between Reza Tabandeh and the so-called Islamic centers in Toronto and Europe and how Shahram Pazouki through the communications with the Ministry of Guidance [in Iran] and Haddad Adel [influential person in Iranian regime] and European universities were able to create a certificate for Reza Tabandeh and give academic credit and personality to this person […] These people want to implement their racist, ISIS-like and terrorist thoughts all over the world through mysticism. […].

[57] I pause to say that this seems to be the closest that the motion record comes to explaining what Mr. Gharagozloo believes was the role of Reza Tabandeh in the assassination of his uncle. While it is far from clear, one inference from Mr. Gharagozloo’s discourse is that Dr. Reza Tabandeh, whom I know to having been educated in Canada in Muslim religious studies, was being groomed to be the eventual pro-regime successor to his uncle and his own father as the spiritual leader of the Sufis in Iran.

[58] Returning to the factual background, in late June and early July 2022, Video #2, along with what Mr. Hosseini labels Videos #1 and #3, are posted on Internet social media accounts. These videos are published online by the IOPHR, not Mr. Gharagozloo. Video #3 is broadcast on August 8, 2022. It is a video of an appearance by Mr. Gharagozloo on a Dorr TV broadcast hosted by Dorr TV’s hostess, Ms. Hafezi.

[59] Dorr TV is a broadcast channel popular with the Farsi speaking public. On the broadcast, Mr. Gharagozloo appears with IOPHR’s counsel, Mr. Sajedi. During the broadcast, Mr. Gharagozloo, speaking in Farsi, reports about his presentation at the Summit. While he is speaking, clips from Video #2 are played, and the photo of Mr. Hosseini standing by Dr. Reza Tabandeh is displayed while Mr. Gharagozloo speaks. A translation of the discussion between Ms. Hafezi and Mr. Gharagozloo on Video #3 follows:

Ms. Hafezi: Hello and Greetings, dear ones. The issue of violating the rights of Iranian citizens, especially the violation of the rights of religious and doctrinal diversities in Iran, has become one of the main problems of citizens in the country. What is solution to this crisis? In addition to we are witnessing unbridled general and continuous violation of human rights in all parts of the country. Truly, why are followers of different religions and beliefs the target of attacks and harassment organized by the government? To answer this question, we invited four human rights activists and had a conversation with them.

Ms. Hafezi: Not long ago, Mr. Gharagozloo held a cyber conference on the sidelines of the annual meeting of the International Organization for Freedom of Religions and Beliefs in the United States of America, the World Association for International Organisation to Preserve Human Rights, regarding the violation of the rights of religious minorities in Iran. As a representative of the International Organisation to Preserve Human Rights, you were the organizer of this meeting, which was held in three days. If possible explain to our audience about the way of holding this meeting and the results of it.

Mr. Gharagozloo: […] And this year I had the honor of speaking and [presenting] a film about the crimes against the dervishes and martyrdom of the three sole masters of Nematullahi Gonabadi order and the reasons behind it, especially their enmity with Dr. Noor Ali Tabandeh and his creeds and ideals were discussed and who were those involved in those crimes inside the Gonabadi order and worked for Khameinei’s regime, who are six people [who conspired from within the order] and after the imprisonment, house arrest and removal and consecutive poisonings of Dr. Noor Ali Tabandeh and his martyrdom, finally replacing selected person by Khamenei as the leader of the order. Of course, all these conspiracies and conspiracies were uncovered by continuous efforts of International Organisation to Preserve Human Rights.

[60] On August 10, 2022, a friend of Mr. Hosseini tells him about the posting of Video #1 and Mr. Hosseini views the videos. He immediately seeks legal advice.

[61] On August 12, 2022, Joel Etienne, Mr. Hosseini’s legal counsel writes the following notice letter to Mr. Gharagozloo which was emailed to Mr. Gharagozloo and received by him on August 17, 2022:

We act for Mr. Seyed Mansour Hosseini […].

[…] you attended the "Convening of a Coalition for International Religious Freedom Summit", […] - between June 28 to June 30, 2022, in Washington D.C. (the "Summit"). […]

During the Summit, you presented a video - ten minutes and fifty-seven seconds of length - to the Audience, which was narrated by an unknown female voice […].

The female narrator alleged that the Islamic Regime of Iran (the "Regime"), particularly, Iran's Supreme Leader, Mr. Khamenei, has infiltrated and taken over the Gonabadi Sufis. The narrator further alleged that in or about February 2018, the Regime, through their infiltrated agents, including tens of thousands of besieges, who pretended to be Gonabadi Sufis, put the then Leader of the Gonabadi Sufi, Mr. Tabandeh, under house arrest, and eventually after a period of two years repeatedly poisoning him, assassinated him.

During the period of time where the female narrator advanced the above allegations, publicly, a picture of Mr. Hosseini was intentionally shown (at 8:00) to imply that our client is one of the alleged Iranian besieges who pretends to be a Gonabadi Sufis. The said video was further mass broadcasted and shared on social media, including […]. In addition to the above, on or about June 29, 2022, you shared another video - four minutes and thirty-eight seconds long - of yourself where you reported about the Summit and admitted that you spoke about 43 years of the Regime's brutal attack on the Gonabadi Sufi, the alleged assassination of three Gonabadi Sufi leaders, and the unlawful arrests of many Sufis in Iran. You proceeded to allege that at the Summit, you unmasked 7 agents of the Regime who allegedly played a part in the above-mentioned activities. A picture of our client again was publicly displayed/shown (at 1:22), implying that he was associated with these ruthless activities ("Video #2"). Similar to the first video, video #2 was also shared on social media, including […]

Further, our client demands forthwith, that you post a statement of retraction and apology on any and all communication platforms, specifically, on the Instagram accounts of […]. Mr. Hosseini shall take steps to pursue all legal and proper remedies available to him should you fail to comply.

[62] On August 17, 2022, Mr. Hosseini posts on his Instagram account a copy of his lawyer’s letter to Mr. Gharagozloo. The posting of this letter to Instagram is the first time that Mr. Hosseini’s name is publicly connected to Videos #1 and # 2 and to Mr. Gharagozloo.

[63] Mr. Gharagozloo denies receiving an email copy of the lawyer’s letter on August 17, 2022. He deposes that he first saw the letter when it was personally delivered on September 1, 2022. He did, however, see the Instagram posting in the middle of August, and he submitted that he had reason to question the providence of the Instagram version of the letter because he reasonably expected that such a letter would be served personally or at least provided directly to him by some method of communication other than a social media post.[^4]

Mr. Gharagozloo never responds to the cease and desist letter. Instead, he prepares Video #4, which is posted on social media and on Dorr TV on August 28, 2022. Video #4 shows Mr. Gharagozloo delivering a speech in Farsi. A translation of Mr. Gharagozloo’s speech on Video #4 follows:

[…] Some time ago, a letter from a lawyer of a person named Mansour Hosseini addressed to me, Hamid Gharagozloo, was published in the cyberspace. In relation to the activities of the International Organisation to Preserve Human Rights, regarding my reports and speeches at the annual International Religious Freedom SUMMIT meeting, which was held in the city of Washington in the United States in June this year.

For you to be more familiar; this meeting is organized every year by Human right organizations from all over the world in relation to the violation of the rights of different religious and ideological groups under the management of the International Round Table on Freedom of Opinions and Religions, that I am also a member of its board of directors about Iran, that held this meeting. Every year the International Organisation to Preserve Human Rights publishes and present reports in the case of the crime[s] of the ruling regime in Iran for all ethnic groups, followers of different beliefs and religions, civil activists, political activists, environmental activists, Iranian women and all those who were oppressed in anyway by the ruling regime of Iran.

This year, the reports of the International Organisation to Preserve Human Rights included two parts: one part was about all the victims of the ruling regime in Iran, and the other part included reports and the presentation of documents, as well as an eleven minutes video briefly explaining the causes of Ali Khamenei’s regime hostility with the Nehmetallah Gonabadi order and their crimes against this school led to the martyrdom of the three sole masters of this order, […] and at the end the martyrdom of Dr. Noor Ali Tabandeh, […] and also replacing Dr. Noor Ali Tabandeh with a person picked by Ali Khameini named Mohandes Jazbi as the sole master of the order was shown to the audience.

Now, Mr. Mansour Hosseini's lawyer is claiming that because his client is seen in a scene of this clip along with those involved in the conspiracy against Dr. Noor Ali Tabandeh, this clip has caused his client's disrepute and he can sue me. The lawyers of International Organisation to Preserve Human Rights, based on the laws and juridical standards and international laws, have given a very clear explanation of the absurdity of this claim and the destitution of these claimants and Mr. Mansour Hosseini. […]

Mr. Mansour Hosseini's lawyer and himself probably committed a crime by publishing the address of my residence and republishing it by his colleagues, but in response to this letter, I was told by Mansour Hosseini's lawyer that legal actions and a legal complaint will be filed against me. I must say, I am eagerly waiting for your action, because this meeting was held in America, the international organization to Preserve human rights is in Europe, Mr. Mansour Hosseini is in Canada, and this crime and these crimes were executed in Iran, so it should be through the federal court of the United States of America, they should file this complaint and you come and file your complaint and present your documents and evidence, I will do the same with thousands of pages of documents written and verbal testimonies about the imprisonment and martyrdom of His holiness […] Dr. Noor Ali Tabandeh.

Two years of investigation which validity of these documents was approved by the US Ministry of Foreign Affairs and the US government, and based on these documents, the US Ministry of State, the US Commission on International Religious Freedom, as well as the European Union, published reports on these crimes. […] Now you raise your complaint, finally, with this cartoon, [referring to the lawyer’s letter], you will cause these documents to be registered and approved by the American Federal Court and the American Judicial Organization, and each of these paves the way for the next steps of Dr. Noor Ali Tabandeh's litigation for us. If God wills the enemy to be the cause of good, he knows this.

[64] When Video #4 appeared on Dorr TV, it identifies Mr. Hosseini as a resident of Canada and an attendee at the Islamic Center of the Islamic Republic of Iran in Toronto. The caption to the video, which is prepared by Dorr TV states that: “Mr. Hosseini was “an advisor to Reza Tabandeh, a family member of Dr. Noor-Ali Tabandeh, who played a significant role in the restrictions that led to the removal of Dr. Noor-Ali Tabandeh.” The caption states: “the complainant is a person named Seyed Mansour Hosseini, who lives in Canada and visits the Islamic Center of the Islamic Republic of Iran in Toronto.”

[65] On September 2, 2022 comes the publication on the Internet of Video #5. Video #5 is another segment of a Dorr TV broadcast. In the video, Ms. Hafezi speaks to Mr. Gharagozloo and Mr. Sajedi, IOPHR’s legal counsel. Mr. Sajedi states that Mr. Hosseini’s lawyer’s letter was a “laughable intimation” of a real letter and merely a show-off. Mr. Sejadi says that IOPHR has ample evidence to prove that Mr. Hosseini is a violator of human rights and participated in the house arrest and assassination of Dr. Noor-Ali Tabandeh. He repeats the invitation to Mr. Hosseini to commence a defamation lawsuit, otherwise, his letter would be considered a mere show of bravado. During Video #5, Mr. Gharagozloo states that:

Mansour Hosseini is devotee of Reza Tabandeh…and if you want to know who Reza Tabandeh is, you have to know Shahram Pazouki and the rest of the group of seven who were unmasked/introduced to the world [at the Summit] as the architects of Dr. Noor-Ali Tabandeh’s removal and house arrest and finally his martyrdom. […] if it was not for these “hypocrites and termites”, Iranians and Sufis would have benefitted from Dr. Noor-Ali Tabandeh's teachings and millions would have followed.

[66] Dorr TV has 713,500 subscribers on the Telegram channel, 21,600 followers on Instagram, and 15,100 subscribers on YouTube. Video #1 has been viewed 80,800 times on Dorr TV's Telegram channel. Video #2 has been viewed 89,200 times on Dorr TV’s Telegram channel. Video #3 has been viewed 109,500 times. Video #4 has been viewed 86,600 times, and Video #5 has been viewed 102,500 times.

[67] After Videos #1, #2, #3, #4, and #5, there are more videos, but none involve Mr. Gharagozloo. Ms. Hafezi and Dorr TV produce six more videos mentioning Mr. Hosseini including a four-part series called “Who is Seyed Mansour Hosseini?” The videos describe Mr. Hosseini’s alleged ties to the Iranian Government. In the videos, Ms. Hafezi states that Mr. Hosseini was one of the core people who were either aware of, benefited from, or participated in the house arrest of Dr. Noor Ali Tabandeh and that Mr. Hosseini had close ties to Dr. Reza Tabandeh. With the numeration used by Mr. Hosseini, the videos are published on: August 30, 2022 (Video #6); September 4, 2022; (Video #7); September 6, 2022 (Video #8); September 7, 2022 (Videos #9 and #10); September 25, 2022 (Video #12); September 26, 2022 (Video #13), and September 28, 2022 (Video #11).

7. Miscellaneous Factual Matters

[68] There are nine factual matters that the parties submit are relevant to the determination of Mr. Gharagozloo’s anti-SLAPP motion. I shall describe these matters seriatim and as necessary in the analysis section of my Reasons for Decision.

[69] First, Mr. Gharagozloo points out that before the allegedly defamatory events in the summer of 2022, Mr. Hosseini had himself engaged in public discourse on matters related to Dr. Noor Ali Tabandeh and the Gonabadi Sufis in Iran. He had posted two letters on his social media platforms since at least 2018, some of which were reposted by pro-Regime news channels. The Plaintiff’s public activities in this regard include referring to two independent Farsi news sources DorrTV and InfoSoufi, as “satanic media channels.” Further, Mr. Gharagozloo submits that by posting his lawyer’s letter on his Instagram Account, Mr. Hosseini injected himself into the public debate by publicly linking his name for the first time to Video #1 and Video #2.

[70] Second, Mr. Hosseini says that Mr. Gharagozloo has never explained how he happened to come upon Mr. Hosseini’s Instagram posting of the lawyer’s letter. Mr. Gharagozloo and IOPHR coming upon Mr. Hosseini’s Instagram posting is odd given that Mr. Hosseini’s account had only 150 followers limited to his family and friends, none of which are connected to Mr. Gharagozloo.

[71] Third, Mr. Hosseini says that in one of the videos produced by Ms. Hafezi (Video #12) entitled: “The Islamic Centres of The Regime Must Be Conquered by Our Countryman Living Abroad,” the narrator refers to recent protests in Iran and then states that “the Valiasr Islamic Centre in Toronto, Canada, where Reza Tabandeh and his friend Seyed Mansour Hosseini attend, can be wound up by the freedom-loving Iranians.” In light of these comments, Mr. Hosseini felt compelled to warn the Centre of a security risk and he also reported the video to the police.

[72] Fourth, Mr. Gharagozloo submits that Mr. Hosseini’s evidence falls well short of establishing that he suffered any real harm from Videos #1 and #2. Mr. Gharagozloo submits that Mr. Hosseini’s stress and gastro-intestinal problems cannot be linked to the videos but are related to pre-existing medical conditions since at least 1992 and recent traumatic events, including his divorce in 2014, his job loss in 2016, his failed businesses in 2019 and 2022, the death of his mother in August 2022, and his inability to attend his mother’s funeral in Iran because of the perceived risk of harm from being a convert to Sufism. Mr. Gharagozloo submitted that Mr. Hosseini’s fear of being recognized and his reticence to attending Iranian stores, restaurants, or religious centres for prayers, is an irrational fear that is not substantiated by any evidence. Further, Mr. Gharagozloo argues that Mr. Hosseini has not identified any harm to his reputation that occurred before his publishing his cease and desist letter on Instagram, which publication made the videos a public matter. On the matter of harm, Mr. Gharagozloo says that Mr. Hosseini has refused to produce documents to support his claims of reputational harm and his assertion that there has been a campaign of harassment and invasion of privacy by Mr. Gharagozloo and others.

[73] Fifth, Mr. Gharagozloo submits that Mr. Hosseini has not been candid or forthcoming about his level of involvement with the Vali-E Asr Islamic Centre, located in Markham, Ontario. Mr. Gharagozloo points out that although Mr. Hosseini testified that he was not involved with the Centre and was not a member, this evidence shows him to be disingenuous and deceitful because his disinterest in the affairs of the Centre is contradicted by the evidence that he contacted the York Regional Police on behalf of the Centre and that he had communications with the police about the security of the Centre and about its court affairs. Mr. Gharagozloo adds that during cross-examination, Mr. Hosseini refused to answer questions about his contacts with the police and only produced copies of the police reports after the cross-examination. Mr. Gharagozloo submits that this disingenuous and deceitful behaviour undermines the Plaintiff’s credibility and supports the fact that the defamation proceeding is being brought for ulterior reasons.

[74] Sixth, Mr. Gharagozloo, in support of his allegation that Mr. Hosseini’s defamation has been brought for an improper purpose, relies on the evidence that Mr. Hosseini has publicly stated that he has “given [his] heart to Jazbi”, who is one of the seven named Co-conspirators.

[75] Seventh, Mr. Gharagozloo, in support of his allegation that Mr. Hosseini’s defamation has been brought for an improper purpose, relies on Mr. Hosseini not being forthcoming about his relationship with Dr. Reza Tabandeh including: (a) refusing to produce documents about that relationship, including all documents and/or correspondence with Dr. Reza Tabandeh; (b) not explaining how Dr. Reza Tabandeh became aware of the lawsuit against Mr. Gharagozloo; and (c) not calling Dr. Reza Tabandeh as a witness notwithstanding Mr. Hosseini having indicated that Dr. Reza Tabandeh personally told him that the allegations against him were untrue.

[76] Eighth, Mr. Gharagozloo, in support of his allegation that Mr. Hosseini’s defamation has been brought for an improper purpose, relies on the fact that during his cross-examination, Mr. Hosseini refused to answer questions about whether he is receiving financial support from anyone in connection with this lawsuit despite stating in his Affidavit that he is “a private citizen with limited resources” and despite his connections to Dr. Reza Tabandeh and the Centre.

[77] Ninth, in support of his claim for $50,000 in damages, Mr. Gharagozloo says that after Mr. Hosseini made his Instagram posting of the cease and desist letter, for the first time in his career as an activist, Mr. Gharagozloo received anonymous threating calls and a threatening knock on the door of his home at 3:00 a.m. and the organizers of the 2023 Summit received communications that cause them to appoint three security guards for Mr. Gharagozloo’s protection at the Summit.

C. Background Law

1. Defamation, Defamatory Meaning, and Defences

[78] Defamation is a tort action to protect a person’s reputation. Defamation occurs when the defendant makes a communication that tends to lower a person in the estimation of right-thinking members of society, or to expose a person to hatred, contempt, or ridicule.”[^5] The elements of a claim of defamation are: (1) the defendant makes a statement; (2) the words of the statement are defamatory, i.e., the words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (3) the statement refers to the plaintiff; and (4) the statement is published.[^6]

[79] The defamatory communication may be made orally (slander), or in some written or printed form by way of a brochure, gesture, handbill, letter, photograph, placard, poster, sign, or cartoon etc. (libel).[^7] To determine whether an expression is defamatory, the court undertakes a twofold analysis of whether a reasonable person to whom the words were published would understand them in a defamatory sense by asking (a) whether, as a matter of law, the published words are capable of bearing the defamatory meanings alleged by the plaintiff; and (b) if so, whether a reasonable person would have understood the words in their defamatory sense.[^8]

[80] Statements are defamatory when they lower the plaintiff’s reputation in the eyes of a reasonable person.[^9] A court must consider both the plain and ordinary meaning of the words, as well as the surrounding circumstances known to the recipient, and which give defamatory meaning by way of innuendo. In determining the meaning to be taken from the words used by the defendant, their plain and ordinary meaning must be considered, and the context in which the words are used and any reasonable implications the words may bear; the audience, and the manner of expression are also relevant to determine meaning.[^10]

[81] Under the second branch of the analysis, the reasonable person is someone who is “reasonably thoughtful and informed, rather than someone with an overly fragile sensibility. A degree of common sense must be attributed to those receiving the defamatory content.”[^11] Similarly, when determining innuendo or inferential meaning from a potentially defamatory statement, the test is a reasonable person’s assessment based on the entirety of the publication and in the context of all the circumstances.[^12]

[82] The gravity of some statements, such as an attribution of the plaintiff being dishonest, immoral, a pedophile, a terrorist, a terrorist supporter, a racist, a human smuggler, a corrupt politician, a swindler, a racketeer, a gangster, a mobster, are defamatory and so obviously likely to cause serious harm to a person’s reputation that the likelihood of harm and general damages can be inferred.[^13]

[83] In the immediate case, the alleged defamation in Videos #1 and #2 is by images. As discussed further in the analysis portion of these Reasons for Decision, images, including photographs or video representations, may be defamatory depending on the circumstances of the particular case.[^14]

[84] In Roy v. Ottawa Capital Area Crime Stoppers,[^15] Justice MacLeod said that there are nine recognized defences to defamation actions; namely: (a) “truth or justification”, where the defendant proves that the statement was factually accurate and substantially true; (b) “absolute privilege”, where statements in Parliament, in court, or in a complaint to a regulatory body are cloaked with immunity; (c) “statutory privilege”, where s. 3 of the Libel and Slander Act[^16] protects broadcasts or publication of fair and accurate reports of certain public meetings and proceedings, unless the publication is made with malice and provided the statutory conditions are met; (d) “qualified privilege”, where the defendant has a duty or legitimate interest in communicating to an audience that has a legitimate interest in receiving the information and the statement is made without malice; (e) “fair comment”, where statements on a matter of public interest that are recognizable as comments or opinions are made without malice; (f) “public interest responsible communication”, which protects publishers if they have acted responsibly by taking reasonable steps to ascertain the reliability of the information and if the statement relates to a matter of public interest and was communicated without malice; (g) “consent”, where the plaintiff explicitly or implicitly agreed to the publication of the libel; (h) limitation periods, statutory notice requirements, and preconditions to suing or statutory provisions that limit the plaintiff’s damages; and (i) “innocent dissemination”, which relieves booksellers, libraries, news vendors and Internet service providers of liability for dissemination of libelous content of which they were unaware.

[85] In the immediate case, the defences that may be in play are (a) justification; (b) qualified privilege; and (c) fair comment.

[86] Qualified privilege attaches to an occasion where “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.’”[^17] This privilege is grounded in “the social utility of protecting particular communicative occasions from civil liability.”[^18]

2. Anti-SLAPP Motions

[87] Sections 137.1 of the Courts of Justice Act states:

Dismissal of proceeding that limits debate

Purposes

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.

Definition, “expression”

(2) In this section,

“expression” means any communication, regardless of whether it is made verbally or nonverbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.

Order to dismiss

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

No dismissal

(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.

No further steps in proceeding

(5) Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of. 2015, c. 23, s. 3.

No amendment to pleadings

(6) Unless a judge orders otherwise, the responding party shall not be permitted to amend his or her pleadings in the proceeding,

(a) in order to prevent or avoid an order under this section dismissing the proceeding; or

(b) if the proceeding is dismissed under this section, in order to continue the proceeding.

Costs on dismissal

(7) If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances.

Costs if motion to dismiss denied

(8) If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances.

Damages

(9) If, in dismissing a proceeding under this section, the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate.

[88] Section 137.1 (3) of the Courts of Justice Act places a threshold burden on the moving party to show on a balance of probabilities that: (a) the underlying proceeding is somehow causally related to the moving party’s expression; and (b) the expression relates to a matter of public interest.[^19] The threshold burden is purposefully not a heavy onus, and what is a matter of public interest is viewed expansively, liberally, and generously.[^20]

[89] The inquiry of whether a matter is of public interest is a contextual one that asks what the expression is really about and whether some segment of the community would for good or for ill have a genuine interest in receiving information on the subject.[^21] In Grant v. Torstar Corp.,[^22] Chief Justice McLachlin referred to Lord Denning’s comments in London Artists, Ltd. v. Littler[^23] where he described public interest broadly as matters that affect people at large so that they may be legitimately concerned about what is going on or what may happen to them or to others. An expression that relates to a matter of public interest need not further the public interest and indeed may be harmful to the public interest.[^24] The concept of public interest is a broad one that does not take into account the merits or manner of the expression, nor the motive of the speaker.[^25] An expression may be defamatory, false and malicious and still relate to a matter of public interest.[^26]

[90] While some topics are inherently a matter of public interest (for example, the activities of governments and courts),[^27] there is no exhaustive list of topics that are matters of public interest, and, depending on the context and circumstances, an expression may engage the public interest. An expression may be a matter of public interest without engaging a substantial part of the community; it is enough that some segment of the community would have a genuine interest in the subject matter of the expression.[^28] Expressions involving corporations and commercial topics may relate to matters of public interest.[^29]

[91] Once the showing of an expression on a matter of public interest is made, the burden shifts to the plaintiff in the underlying lawsuit to satisfy the motion judge that there are grounds to believe (a) that the plaintiff’s proceeding has substantial merit; (b) that the defendant has no valid defence; and (c) the public interest in permitting the plaintiff’s proceeding to continue outweighs the public interest in protecting the defendant’s expression. If the plaintiff in the underlying lawsuit cannot satisfy the motion judge that it has met this tripartite burden, then the motion will be granted, and the plaintiff’s proceeding will be dismissed.[^30]

[92] An anti-SLAPP motion pursuant to s. 137.1 motion is not a determinative adjudication of the merits of the underlying claim or a conclusive determination of the existence of a defence. A motion judge deciding a s. 137.1 motion should engage in only limited weighing of the evidence and should defer ultimate assessments of credibility and other questions requiring a deep analysis into the evidence to a later stage, where judicial powers of inquiry are broader, and pleadings more fully developed.[^31]

[93] In determining whether there exist grounds to believe that the claim can be said to have a real prospect of success, courts must be aware of the limited record, the timing of the motion in the litigation process, and the potentiality of future evidence emerging.[^32] Taking into account the stage of litigation at which the motion is brought, the court must be satisfied that there is a basis in the record and in the law for finding that the underlying proceeding has substantial merit and that there is no valid defence, which is to say that while the plaintiff in the underlying proceeding need not definitively demonstrate that its claim is more likely than not to succeed, the claim must nonetheless be sufficiently strong that it has a real prospect of success; this requires the motion judge taking into account the stage of the proceeding, and be satisfied that the claim be legally tenable and supported by evidence that is reasonably capable of belief.[^33] A real prospect of success means that the plaintiff's success is more than a possibility and more than an arguable case.[^34]

[94] The no valid defence prong of the test on the motion requires the plaintiff to show that there are grounds to believe that all the defences that have been put into play by the defendant to the underlying proceeding do not have a real prospect of success, which is to say that the defences could be found to be not legally tenable or not supported by evidence that is reasonably capable of belief.[^35] On a s. 137.1 motion, there is an evidentiary burden on the defendant who is resisting the motion to advance a valid defence, and then the persuasive burden moves to the plaintiff to show on a balance of probabilities that there are reasonable grounds to believe that the defence is not valid, which is to say not a successful defence.[^36] The question, however, is not whether there is no merit to the defence; rather, the question is whether a trier of fact could reasonably conclude that among the range of possible outcomes was the outcome that there was no defence.[^37]

[95] Thus, if the defendant meets the evidentiary burden of putting the defence in play, the plaintiff bears the onus of persuading the motion judge that a reasonable trier examining the record could, but not necessarily would, reject the defence(s).[^38] In other words, the plaintiff does not have to show that there was no possibility that the defence could succeed but, rather, the plaintiff need show just that it was reasonably possible that a trier could conclude that the defence would not succeed; a determination that a reasonable trier could decide either way on the defence satisfies the onus.[^39]

[96] Weighing the public interest in freedom of expression and public participation against the public interest in vindicating a meritorious claim is the critical aspect of the s. 137.1 motion analysis, and the critical determination is whether the harm (be it monetary or non-monetary harm such as an injured reputation) caused by the defendant’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

[97] On an anti-SLAPP motion, the party seeking to have his or her action continue must demonstrate the existence of harm that is sufficiently serious that it outweighs the public interest in protecting his or her opponent’s expression on a matter of public interest. However, the party resisting the anti-SLAPP motion is not required to fully particularize or quantify the harm; rather, he or must only demonstrate the existence of serious harm caused by the opponent’s statements.[^40] There is no threshold of seriousness, and harm is not limited to monetary harm.[^41] General damages for harm to reputation are presumed from the publication of a libel or slander,[^42] and the gravity of some statements, such as an attribution of the plaintiff being dishonest, immoral, a pedophile, a terrorist, a terrorist supporter, a racist, a human smuggler, a corrupt politician, a swindler, a racketeer, a gangster, a mobster, are so obviously likely to cause serious harm to a person’s reputation that the likelihood of harm and general damages can be inferred, even if the party defamed does not lead evidence to show actual harm.[^43]

[98] Once harm has been established and shown to have been caused by the defendant’s expression it is necessary to assess whether the quality of the expression and the motivation behind the expression justifies its protection from civil lawsuit. The level of protection afforded to expression depends on the nature of the expression, and the court may inquire into, among other things, the core values underlying freedom of expression, such as the search for truth, participation in political decision making, and diversity in forms of self-fulfillment and human flourishing.[^44]

[99] The court may also consider: the importance of the expression; the history of litigation between the parties; broader or collateral effects on other expressions on matters of public interest; the potential chilling effect on future expression either by a party or by others; the defendant’s history of activism or advocacy in the public interest; any disproportion between the resources being used in the lawsuit and the harm caused or the expected damages award; and the possibility that the expression or the claim might provoke hostility against an identifiably vulnerable group or a group protected under human rights legislation or under s. 15 of the Canadian Charter of Rights and Freedoms.[^45]

[100] If the anti-SLAPP motion is successful, the moving party may be entitled to damages under s. 137.1 (9) of the Courts of Justice Act, if the Court finds that the plaintiff brought the proceeding in bad faith or for an improper purpose. These damages are intended to “provide compensation for harm done directly to the defendant arising from the impact of the instituted proceeding”[^46] and medical evidence is not necessary to support a claim for damages in response to an anti-SLAPP suit.[^47]

D. Discussion and Analysis

1. The Positions of the Parties

[101] It is necessary at the outset of the analysis to observe that the parties disagree about what they disagree about. Their arguments and counterarguments do not correspond. They do not agree about whether any defamation occurred. They do not agree about the content or meaning of the alleged defamation. They do not agree about who published the defamation if it occurred. They do not agree about who was the target of what was said by Mr. Gharagozloo. They do not agree about whether what Mr. Gharagozloo said about whomever he said it about has been pleaded in his Statement of Claim; i.e., they do not agree about whether the alleged defamation is part of Mr. Hosseini’s cause of action.

[102] In this last regard, Mr. Gharagozloo argues that Mr. Hosseini pleads only defamation in respect of Video #1 and Video #2. Mr. Gharagozloo says that although Mr. Hosseini spends considerable time discussing Videos #3 to #13 in his affidavit and in his factum, none of these videos or statements are part of Mr. Hosseini’s claim for defamation. Thus, Mr. Gharagozloo submits that Videos #3 to #13 are irrelevant to Mr. Hosseini’s claim and cannot be relied on to rebut Mr. Gharagozloo’s anti-SLAPP motion.

[103] Mr. Hosseini, however, does not agree that Videos #3 to #13 are irrelevant. He submits that he was defamed in both Video #1 and Video #2 and also in the eleven other videos by the expression that he was in some way complicit with the death of Dr. Noor Ali Tabandeh. Mr. Hosseini submits that although he is an acquaintance of one of the alleged assassins, Dr. Reza Tabandeh, there is no evidence that Dr. Reza Tabandeh conspired to kill Dr. Noor Ali Tabandeh but more to the point there is no truth that Mr. Hosseini was associated with the assassination. Mr. Hosseini says that Mr. Gharagozloo is the cause of all this defamation. Mr. Hosseini says that he is identifiable or identified in all the videos and that Mr. Gharagozloo irresponsibly and without any evidence has persisted in identifying Mr. Hosseini as an associate of the assassins. Mr. Hosseini asserts that his defamation suit is not confined to Videos #1 and #2 and that his claim is with respect to a series of defamatory statements and a campaign of defamation comprised of five videos for which Mr. Gharagozloo bears direct responsibility, which videos in turn were the cause of the eight more videos for which Mr. Gharagozloo also bears responsibility although he did not produce the videos.

[104] For another example of the parties’ inability to come to terms about what this litigation is about, Mr. Gharagozloo says that it was Mr. Hosseini who publicized his association with the conspirators, and that it was Mr. Hosseini who is the author of his own disgrace and exposure as a co-conspirator. Mr. Gharagozloo says that it was Mr. Hosseini, not Mr. Gharagozloo who publicized the association with the assassins by retaining counsel to write a cease and desist letter and by publishing the letter on an Instagram account. Mr. Gharagozloo says that it was Mr. Hosseini who brought his notoriety onto himself. Thus, Mr. Gharagozloo submits that he did not defame Mr. Hosseini but that he spoke the truth that Dr. Reza Tabandeh, who is Mr. Hosseini’s close friend, and six others conspired to assassinate Dr. Noor Ali Tabandeh and Mr. Gharagozloo points out that Dr. Reza Tabandeh has not surfaced either as a witness in Mr. Hosseini’s action or as a plaintiff in his own action.

[105] When they do come to terms about issues, it is Mr. Gharagozloo’s position that Mr. Hosseini was not defamed by the publication of Videos #1 and #2 and the other videos are irrelevant and cannot save Mr. Hosseini’s defamation action. Further, Mr. Gharagozloo argues that if Mr. Hosseini was defamed by the video clip in Videos #1 and #2, then Mr. Gharagozloo’s defamatory expression in Videos #1 and #2 was on a matter of public interest and he has the defences of justification and qualified privilege. Mr. Gharagozloo says that the only meaning that can be attributed to the video clip shown from Video #2 is that Mr. Hosseini was standing beside Dr. Reza Tabandeh, which is true. Mr. Gharagozloo says that his presentation at the Summit was an occasion of qualified privilege. And, in any event, on the critical matter of the balancing of the public interest, Mr. Gharagozloo submits that Mr. Hosseini has not established that the public interest in permitting his proceeding to continue outweighs the public interest in protecting Mr. Gharagozloo’s expression. Accordingly, relying on s. 137.1 of the Courts of Justice Act, Mr. Gharagozloo submits that Mr. Hosseini’s action should be dismissed.

[106] When they do come to terms about issues, it is Mr. Hosseini’s position that Mr. Gharagozloo was engaged in a personal vendetta and was not speaking on a matter of public interest and that Mr. Gharagozloo seriously defamed Mr. Hosseini. Mr. Hosseini submits that Mr. Gharagozloo’s defences are meritless and that the public interest favours the continuation of Mr. Hosseini’s lawsuit. Accordingly, Mr. Hosseini submits that Mr. Gharagozloo’s motion should be dismissed.

2. Did Mr. Gharagozloo Speak on a Matter of Public Interest?

[107] Mr. Hosseini denies that Mr. Gharagozloo has met the threshold question of s. 137 of the Courts of Justice Act of having spoken about a matter of public interest.

[108] It is not necessary to spend much time on this issue. I disagree with Mr. Hosseini’s submission. Although in the mudslinging and feuding that followed Mr. Hosseini’s lawyer’s letter, some things were expressed by Mr. Gharagozloo that are petty matters of no particular interest to the public, even the prurient interest of the public in lawyer bashing and in seeing pundits baiting and taunting each other, Mr. Gharagozloo’s statements about the activities of the Iranian government and of its agents is undoubtedly a matter of profound public interest.

[109] It must be kept in mind that the defamatory content of the expression and the motivations of the speaker are not factors in determining whether or not an expression is in the public interest and the expression itself may not further the public interest. It is the topic of the expression that is determinative, and Mr. Gharagozloo was talking about a matter that was inherently and profoundly in the public interest. The human and religious rights violations of the Iranian government are of profound concern to a world community. A conspiracy to assassinate and replace a spiritual leader is profoundly a matter in the public interest. I conclude that Mr. Gharagozloo has satisfied the threshold element of the s. 137.1 analysis. With that finding, the onus shifts to Mr. Hosseini to justify the continued prosecution of his defamation claim.

3. The Relevance of Videos #3, #4, and #5

[110] A claim in defamation must be fully particularized. Due to the serious nature of defamation allegations and the significance of context in assessing them, it is particularly important that a defendant know the case he or she must meet and a plaintiff is required to plead the particulars within his or her knowledge, including particulars: (a) of what was said; (b) that the words were defamatory of the plaintiff in their plain and ordinary meaning; (c) the publication of the words by the defendant; and (d) the audience for the publication.[^48]

[111] Mr. Gharagozloo argues that Videos #1 and #2 do not defame Mr. Hosseini because he is not identified and he is not mentioned. Further, Mr. Gharagozloo argues and that the other videos cannot be the source of a defamation claim because they are not a part of Mr. Hosseini’s Statement of Claim. As I shall explain in the next section of these Reasons for Decision, taken separately or taken together, Videos #1, #2, #3, #4 and #5 are defamatory. In this part of my reasons, I shall address Mr. Gharagozloo’s surreal technical argument that Videos #3, #4, and #5 are irrelevant to Mr. Hosseini’s case and to Mr. Gharagozloo’s anti-SLAPP motion.

[112] One may begin the analysis by sceptically and rhetorically asking why is it that Mr. Gharagozloo is so insistent that he does not know the particulars of the allegations in Videos #3, #4, and #5, given that Mr. Gharagozloo is prominently featured in all these videos, is the producer of Video #4, and used these videos to invite the defamation action so that he could defend it on substantive grounds and not technical grounds.

[113] The rhetorical answer to the rhetorical question is that Mr. Gharagozloo realizes: (a) that Mr. Hosseini’s action for defamation is very strong in the three videos in which Mr. Gharagozloo actually names Mr. Hosseini and actually connects him to Dr. Reza Tabandeh and the assassination conspiracy; and (b) that it was a tactical and strategic blunder for Mr. Gharagozloo to add targeted identification and defamatory words to a case originally just built on the innuendo of a fleeting image in Videos #1 and #2. Put colloquially, the rhetorical answer is that Mr. Gharagozloo was spoiling for a fight, and he now realizes that he pulled out a gun to shoot his enemy and he shot himself instead.

[114] The non-rhetorical answer is that Mr. Gharagozloo’s technical argument is without substantive merit because he knows precisely the case he has to meet. The non-rhetorical part of the analysis continues that while it is undoubtedly the case that Mr. Hosseini’s Statement of Claim is in some respects a poorly drafted pleading, there is no merit to Mr. Gharagozloo’s argument that he does not know precisely all the particulars he needs to know to defend the defamation action that he invited and which he could have avoided by responding to the lawyer’s letter with a polite non-apologetic message that he did not know Mr. Hosseini and that nothing in Videos #1 and #2 was directed at Mr. Hosseini. However, that is not what happened, and it is the actions of Mr. Gharagozloo in lighting a fire from the fuel of Videos #1 and #2 that make Videos #3, #4, and #5 relevant.

[115] Earlier in these Reasons for Decision, I set out in bold text the passages from Mr. Hosseini’s Statement of Claim that put the unenumerated videos, which are now enumerated as Videos #3, #4, and #5, within the scope of Mr. Hosseini’s defamation action. In my opinion, the Statement of Claim as it currently exists makes Videos #3, #4, and #5 relevant to Mr. Hosseini’s action. All that one needs to do is enumerate the various videos, and enumeration is an incidental non-material fact, and all the material facts necessary to encompass all the videos have already been pleaded. Mr. Hosseini’s Statement of Claim is adequately particularized and Mr. Gharagozloo already knows the case he has to meet but is no longer eager to meet it.

[116] In any event, Videos #3, #4, and #5 are unavoidably relevant to Mr. Gharagozloo’s anti-SLAPP motion because they are part of the narrative leading to the defamation action and the videos are relevant to each aspect of the test that a court must apply to determine whether or not to dismiss the action. These videos occurred before the issuance of the Statement of Claim and are part of the story of the defamation.

[117] Mr. Gharagozloo, however, submits: (a) that Mr. Hosseini is confined to the parameters of his pleaded Statement of Claim as it has been pleaded; (b) that the anti-SLAPP motion must be decided based on the original pleading; and (c) that Mr. Hosseini cannot amend his Statement of Claim at this juncture to bring Videos #3, #4, and #5 into play. Mr. Gharagozloo relies on s. 137.1 (6), which states:

No amendment to pleadings

(6) Unless a judge orders otherwise, the responding party shall not be permitted to amend his or her pleadings in the proceeding,

(a) in order to prevent or avoid an order under this section dismissing the proceeding; or

(b) if the proceeding is dismissed under this section, in order to continue the proceeding.

[118] In the immediate case, as already indicated above, I conclude that it is not necessary for Mr. Hosseini to amend his pleading to avoid having his defamation action dismissed, but if it were necessary, then in the surreal circumstances of the immediate case, I would exercise my discretion under s. 137.1 (6) and make an order allowing him to amend his pleading to better articulate his defamation claim and to expressly encompass Videos #3, #4, and #5.

[119] In regard to s. 137.1 (6), it is informative to contemplate what might have happened had I dismissed Mr. Hosseini’s action because I agreed (which I don’t) that Videos #1 and #2 are not defamatory and I agreed (which I don’t) that Videos #3, #4, and #5 are not part of Mr. Hosseini’s current action. In those circumstances, I could not and would not rule on the defamatory nature of Videos #3, #4, and #5, and it would then be for some other judge who might be asked by Mr. Hosseini to grant leave to continue the proceeding. And if leave were granted, which is likely, then there would be another anti-SLAPP motion. None of this would make any sense when all the issues have been fully and very well argued by Mr. Gharagozloo’s counsel.

[120] I, therefore, determine that all of Videos #1, #2, #3, #4, and #5 are engaged in Mr. Hosseini’s action and all are relevant to Mr. Gharagozloo’s anti-SLAPP motion.

4. Are there Grounds to Believe that Mr. Hosseini’s Proceeding has Substantial Merit?

[121] The next question to address is whether there are grounds to believe that Mr. Hosseini’s proceeding has substantial merit. I shall begin the analysis of that question by considering just Videos #1 and #2 without any augmentation or assistance by the other videos. In my opinion, taken in their context in the immediate case, there are grounds to believe that Mr. Hosseini’s defamation action just about the images in Videos #1 and #2 has substantial merit.

[122] More precisely, in my opinion, any reasonable person, and most particularly any reasonable person in the small close-knit Gonabadi Sufis community, would immediately understand from the video clip that Dr. Reza Tabandeh and the person standing to the left of him are connected to the assassination of Dr. Noor Ali Tabandeh. These reasonable persons would understand that the three gentleman depicted in the photograph, which include a clearly recognizable Mr. Hosseini, are being called out as conspirators in an evil assassination plot by agents of the Iranian government. A reasonable person would feel distain and revulsion for Mr. Hosseini.

[123] Video #2 is a polished well-produced documentary. A reasonable person would anticipate that if there was an innocent person standing beside one of the alleged conspirators, then that person’s image would be obscured. A reasonable person would take meaning from the fact that Mr. Hosseini’s image was not obscured under a caption that stated: “Main co-conspirators to murder, the spiritual leader of the Gonabadi Sufis – Reza TABANDEH” and the meaning would be that Mr. Hosseini was being outed as a co-conspirator.

[124] The fact that the image of Mr. Hosseini only appeared for approximately four seconds in the running of Video #2 is immaterial. Four seconds is more than enough time to recognize Mr. Hosseini, and, in any event, videos posted on the Internet can be paused and the screen image captured and reproduced as I have done several times in these Reasons for Decision.

[125] Mr. Hosseini did not have to be named to be defamed. He is clearly identifiable as one of the subjects of the video clip. The members of the close-knit Gonabadi Sufis community would recognize Mr. Hosseini. If Mr. Hosseini went shopping or engaged in any activities of his religion’s local community, he would be recognized as the subject of the defamatory message communicated by Videos #1 and #2 and a reasonable person might shun and loathe Mr. Hosseini and wish to have nothing to do with him.

[126] For decades if not centuries, BOLO (“Be on the Lookout”) posters have been used to identify by drawing or photograph criminals and other miscreants and call them to account (“wanted dead or alive in the days of the Wild West). Practically speaking, Mr. Gharagozloo issued a BOLO on Dr. Reza Tabandeh, who is named in the video, and on Mr. Hosseini, who is clearly depicted but not named in the videos.

[127] As noted above, the case law reveals that the publication of images can in particular circumstances be found to be defamatory. The immediate case bears some similarity to the British Columbia case of St. Pierre v. Pacific Newspaper Group Inc. and Skulsky.[^49] In that case, The Vancouver Sun published a photo accompanying a news article with the headline “Charges of supporting Hezbollah were dropped against Burnaby’s Ali Adham Amhaz.” The accompanying photo, however, was a photo of Mr. Amhaz’s former legal counsel, David A. St. Pierre that had inadvertently used by the newspaper. The newspaper apologized, but Mr. St. Pierre successfully brought a defamation suit. Justice Rice explained his reasoning for finding the publication of the photograph defamatory; in paragraphs 10- 15 of his decision, he stated:

10. The fact that Mr. St Pierre’s name was not mentioned anywhere in the Article does not exonerate the defendants. They admit that the photograph identified Mr. St. Pierre as Mr. Amhaz. Therefore, words in the Article referring to Mr. Amhaz in effect refer to Mr. St. Pierre, and the defendants are liable if those words are defamatory. […]

11. The Article certainly does not expressly allege that Mr. Amhaz is or was a terrorist. It accurately describes him as an individual once indicted, but against whom the charges have been dropped. It also records his denial of the charges. The caption under Mr. St. Pierre’s picture repeats the statement that charges were to be dropped against Mr. Amhaz. There is nothing else in the Article alleging explicitly that Mr. Amhaz is guilty of terrorist activity. Mr. Gibson, counsel for the defendants, argued that, therefore, the Article is not defamatory of Mr. Amhaz or of Mr. St. Pierre.

12. At law, a person must be presumed innocent until proven guilty. An indictment is not proof of guilt. However, it would be naïve to suppose that the fact of being indicted for a crime, especially a serious one, would not affect negatively a person’s reputation. To report that a person has been indicted on charges of terrorism is enough, in my opinion, to injure his or her reputation. Terrorists are reviled by ordinary people. Little more than a bare accusation is needed to incite fear and loathing toward the person identified. The Article reported not only the indictment, but some of its inflammatory details too. The thrust of the Article as a whole was to alert the reader to a dangerous terrorist conspiracy with connections in Canada. It was likely to raise suspicions in people’s minds against Mr. St. Pierre.

13. That Mr. St. Pierre is a person of colour identified by the name Ali Adham Amhaz, and shown in the picture with something of a frown on his face would lead some readers, I’m sure, to presume that he was of Middle Eastern origin and hostile. It would unfortunately tend to fortify those impressions that they gathered from what they read.

14. The fact that the Article also reported that the indictment was dropped and that Mr. Amhaz denied the charges might have reduced the negative impact, but not substantially in my opinion. People would naturally presume that the prosecutors had evidence to support their case, whether they chose to proceed with it or not.

15. The natural and ordinary meaning of the passages in the Article referring to Mr. Amhaz, in the context of the whole of the Article, is that the man in the picture was probably involved in terrorist activities. Thus, the Article was defamatory of Mr. St. Pierre.

[128] The Alberta case of Chopra v. Hodson[^50] is a case where the publication of an image was held not to be defamatory in the particular circumstances. This case confirms that published images can be defamatory, but a close analysis of the factual context is required to make that determination. In Chopra v. Hodson, the defendant was training police and loss prevention officers and as part of the training, he used a mugshot of the plaintiff. Justice Hembroff dismissed the plaintiff’s defamation action. At paragraph 23 of the judgment, he stated:

23. I am satisfied while the simple handing out of the picture in question could be considered a “publication”, I do not find it to be defamatory. The picture was handed out with a large group of other pictures to an exclusive group of trained experienced security personnel. The picture was handed out without comment and for informational purposes. The persons who received the picture knew the purpose of the meeting and knew the difference between these meetings and other forms of information received from the police where clear allegations of criminal activity were made. These informational meetings in question here were not at all intended as crime alerts or warnings of criminal activity. […]. I do not find that the mere passing around of an untitled, undesignated, undescribed picture of a male person can be taken as a false or defamatory statement by any of the definitions set out above.

[129] The case at bar is much different than Chopra v. Hodson. The publication of the photos of Dr. Reza Tabandeh was undoubtedly defamatory in connecting him to the conspiracy to assassinate and replace a spiritual leader and the publication of the photo that had the unobscured image of Mr. Hosseini standing beside Dr. Reza Tabandeh extended the defamatory meaning to Mr. Hosseini.

[130] There is no merit to Mr. Gharagozloo’s submission that it was Mr. Hosseini who targeted himself by his posting on Instagram or by his lawyer’s letter, or by his defamation action. The defamatory damage had already been done at the Summit and by the posting of Videos #1 and #2 (and #3) on the Internet.

[131] I come to my decision about the defamatory nature of Videos #1 and #2 independently of Videos #3, #4, and #5. Those videos have a defamatory expression which is expressed in words, not only in images like Videos #1 and #2 that implicate Mr. Hosseini in the death of Dr. Noor Ali Tabandeh and in the plot to have a pro-regime replacement installed as spiritual leader of the Gonabadi Sufis. Mr. Hosseini is named in Videos #3, #4, and #5 and the defamatory message that he is amongst the plotters to assassinate and replace Dr. Noor Ali Tabandeh is manifest.

[132] In his factum in the guise that Videos #3, #4, and #5 are not relevant, Mr. Gharagozloo hardly makes any effort to argue that the content of these videos is not defamatory, and he mainly asserts that he has the defences of justification, qualified privilege, and fair comment. This reticence to argue that Videos #3, #4, and #5 are not defamatory makes eminent good sense because any reasonable person would conclude that the words in Videos #3, #4, and #5 spoken by Mr. Gharagozloo without any photos are such that they would lower Mr. Hosseini’s reputation in the eyes of a reasonable person.

[133] I repeat that standing alone Videos #1 and #2 are defamatory. The same is true about each of Videos #3, #4, and #5. Both as a matter of law and as a matter of the appreciation of a reasonable person, the expressions contained in these videos are defamatory.

[134] I conclude that Mr. Hosseini has a strong case that he has been defamed by Mr. Gharagozloo. He has a real prospect of success that is more than a possibility and more than an arguable case.

5. Has Mr. Hosseini Shown that Mr. Gharagozloo has no valid defence?

[135] For the reasons already expressed above, I am satisfied that Mr. Hosseini has satisfied the requirement of 137.1 (4) that there are grounds to believe that his defamation action has substantial merit. I turn to whether Mr. Hosseini has shown that Mr. Gharagozloo has no valid defence.

[136] Mr. Gharagozloo has put into play two defences, i.e., justification and qualified privilege. The thrust of the justification or truth defence is that the defendant can prove that his or her statement was factually accurate and substantially true. The thrust of the qualified privilege defence is that the defendant can prove that he has a duty or legitimate interest in communicating the expression to an audience that has a legitimate interest in receiving the information and the statement is made without malice.

[137] Based on my review of the evidence submitted for this anti-SLAPP motion, I am satisfied that Mr. Hosseini has shown that the justification defence and the qualified privilege defence do not have a real prospect of success which is to say that the defences could be found to be not legally tenable or not supported by evidence that is reasonably capable of belief.

[138] With respect to the justification defence, there is no merit to Mr. Gharagozloo’s argument that the only meaning to be given Videos #1 and #2 is that Mr. Hosseini stood beside Dr. Reza Tabandeh, which is undoubtedly true. As noted above, the defamatory meaning of Videos #1 and #2 are serious allegations that go far beyond Mr. Hosseini standing beside Dr. Reza Tabandeh, and Mr. Gharagozloo will have the burden of establishing the truth of those defamatory statements. Thus, Mr. Gharagozloo has the formidable task of proving that Dr. Reza Tabandeh conspired with six others to assassinate his own uncle, the late Dr. Noor Ali Tabandeh, and that Mr. Hosseini was connected to that conspiracy through his relationship with Dr. Reza Tabandeh.

[139] Paradoxically, Mr. Gharagozloo submits that the truth of his statements about the seven co-conspirators is not relevant to his anti-SLAPP Motion because his motion is just about Mr. Hosseini’s claim that he was defamed which can be detached from the truth of whether there was a conspiracy. The fallacy of that submission is that Mr. Gharagozloo’s revelations against Dr. Reza Tabandeh are inextricably connected to the truth of whether or not Mr. Hosseini is complicit with the co-conspirators.

[140] Based on the evidence proffered on this motion, it is reasonably possible that a trier could conclude that the defence would not succeed either because the evidence to prove the conspiracy has not yet been marshalled and the perpetrators of the crime may have successfully covered up their crimes or because no evidence exists that would implicate Dr. Reza Tabandeh or Mr. Hosseini because they are genuinely innocent of any wrongdoing.

[141] With respect to the qualified privilege defence, I seriously doubt that if Mr. Gharagozloo fails to prove his justification defence or abandons it that he will be able to snatch victory from the jaws of defeat by asserting that the audience for Videos #1 and #2 and the different audiences for Videos #3, #4, and #5 had a need to hear about an innocent man’s association with Dr. Reza Tabandeh who is an alleged but unproven to be conspirator. Mr. Gharagozloo may have had a qualified privilege to defame Dr. Reza Tabandeh, but a court might determine that this qualified privilege must be exercised responsibly, which is essentially the submission made by Mr. Hosseini in his affidavit where he encourages activists to expose the human rights abuses of the Iranian Government. Moreover, there is a more than reasonable prospect that the defence of qualified privilege might fail because Mr. Gharagozloo would be found to have been motivated by malice.

[142] I, therefore, conclude that Mr. Hosseini has met the onus of showing that there are reasonable grounds to believe that the defences of justification and qualified privilege are not valid.

6. Has Mr. Hosseini Shown that the Public Interest in Permitting his Proceeding to Continue Outweighs the Public Interest in protecting Mr. Gharagozloo’s Expression?

[143] For the reasons already expressed above, I am satisfied that Mr. Hosseini has satisfied the requirement of 137.1 (4) that there are grounds to believe that his defamation action has substantial merit and that there are grounds to believe that Mr. Gharagozloo does not have a valid defence. I turn to whether Mr. Hosseini has shown that the public interest in permitting his proceeding to continue outweighs the public interest in protecting Mr. Gharagozloo’s expression on a matter of public interest.

[144] The Supreme Court of Canada has directed that the critical or decisive factor in the determination of whether or not to dismiss an action pursuant to s. 137.1 of the Courts of Justice Act is whether the plaintiff has shown the public interest in permitting his or her proceeding to continue outweighs the public interest in protecting the defendant’s expression. Given the circumstances of the immediate case that I have described in detail above, including the various miscellaneous factual matters that one or other of the parties submits is relevant, the immediate case presents a situation where both the plaintiff and the defendant present strong arguments that the public interest favours them.

[145] Mr. Gharagozloo has a compelling case that his freedom of expression should not be imperilled. To be a human rights advocate for civil and religious rights and to expose the perpetrators of a successful plot to assassinate and replace a spiritual leader is to be a champion of matters very much in the public interest.

[146] Mr. Hosseini has a compelling case that he is the victim of an egregious lie that has caused him physical, emotional, and reputational harm. To be a person of faith and to be accused of being complicit in an allegedly successful plot to assassinate and replace a spiritual leader is to be victim of a defamatory expression equivalent to the “blood libel” associated with anti-Semitism. It is very much in the public interest that such a person have an opportunity to repair the harm caused by the defamation.

[147] Thus, in the immediate case, Mr. Hosseini and Mr. Gharagozloo present strong and indeed compelling arguments that the public interest favours them. As just between the parties, the public interest is perfectly balanced. However, there is a tipping point that tips the public interest balance in favour of permitting Mr. Hosseini’s defamation action to continue.

[148] The public interest tipping point in the immediate case is the public interest in truth and justice. Given the positions of the parties and the circumstance that an anti-SLAPP motion is not a determination of the ultimate merits of the claim or the defence, short of the parties’ settling the case, truth and justice can only be fairly achieved by allowing Mr. Hosseini’s action to proceed. If it is true that Mr. Hosseini is innocent, then he should have the opportunity to repair the damage to his reputation. If it is true, as Mr. Gharagozloo believes, that Mr. Hosseini is not innocent or that Mr. Hosseini is a stalking horse litigant to repair the damage done to Dr. Reza Tabandeh’s reputation but not his own, then Mr. Hosseini is playing with fire and will get seriously burned. If the truth is as Mr. Gharagozloo has expressed it to be, then he was correct to invite Mr. Hosseini’s defamation action and Mr. Gharagozloo will be vindicated. However, if Mr. Gharagozloo made a false or unsubstantiated accusation against Mr. Hosseini, then it is Mr. Gharagozloo who has been playing with fire and he will get seriously burned.

[149] Very serious accusations have been made and at this juncture both parties deserve to be taken seriously. In my opinion, the public interest favours not making a preliminary determination of the merits of the claim or of the defence. Figuratively and objectively speaking, both parties should put their money – and this will be expensive litigation – where their mouths are. The public interest favours a trial and the end of the litigation gamesmanship.

[150] I, therefore, dismiss, Mr. Gharagozloo’s motion with costs.

7. The Matter of Costs

[151] On an anti-SLAPP motion, the parties’ respective exposure to costs is prescribed by sections 137.1 (7) and (8), of the Courts of Justice Act, which state:

Costs on dismissal

(7) If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances.

Costs if motion to dismiss denied

(8) If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances.

[152] As may be observed pursuant to s. 137.1 (8), the normative rule for the circumstances when an anti-SLAPP motion is dismissed is that there be no costs to the successful party. However, a judge may determine that such an award is appropriate in the circumstances.[^51] In applying s.137.1(8) of the Courts of Justice Act, the mere fact that an anti-SLAPP motion is dismissed, and the defamation action allowed to proceed is not enough to justify a costs award and additional justification is needed, otherwise the statutory purpose of 137.1 (8) would be undermined.[^52]

[153] In the immediate case, in my opinion, Mr. Gharagozloo should pay costs at a scale to be determined in any event of the cause.

[154] In other words, the costs are ultimately payable but not forthwith. If Mr. Hosseini is unsuccessful at the trial, then Mr. Hosseini will be able to setoff Mr. Gharagozloo’s costs liability against his own. This seems fair to me. At this juncture, when the outcome is unknown, costs should not be used to encourage or to discourage the resolution of the case. Mr. Gharagozloo welcomed and invited Mr. Hosseini’s defamation action and then reneged on the welcome and invitation. Instead of defending the action, he brought an anti-SLAPP motion. The anti-SLAPP motion was unsuccessful, and it is just and fair particularly having regard to the circumstance that Mr. Gharagozloo could have resolved this matter peacefully at a time in which he had no knowledge of Mr. Hosseini’s alleged involvement in the alleged plot but keeps doubling down on his accusations against Mr. Hosseini. In short, in the circumstances, the anti-SLAPP motion should not have been brought and since the motion was unsuccessful Mr. Gharagozloo should pay costs in any event of the cause.

E. Conclusion

[155] For the above reasons, Mr. Gharagozloo’s motion is dismissed with costs in any event of the cause.

Perell, J.

Released: April 21, 2023

COURT FILE NO.: CV-22-00688949-0000

DATE: 20230421

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SEYED MANSOUR HOSSEINI

Plaintiff

• and –

HAMID GHARAGOZLOO

Defendant

REASONS FOR DECISION

PERELL J.

Released: April 21, 2023

[^1]: R.S.O. 1990, c. 43.

[^2]: R.S.O. 1990, c. L. 12.

[^3]: During his cross-examination, the Plaintiff identified the other man. Mr. Gharagozloo did not know who the other man was until Mr. Hosseini’s examination.

[^4]: At the hearing of the motion, Mr. Gharagozloo’s counsel withdrew the suggestion that there was no email sent at all on August 17, 2022.

[^5]: Thorpe v. Boakye, 2022 ONSC 7176; Kaur v. Virk, 2022 ONSC 6697; Foulidis v. Ford, 2014 ONCA 530; Botiuk v. Toronto Free Press Publications Ltd., 1995 60 (SCC), [1995] 3 S.C.R. 3.

[^6]: Konstan v. Berkovits, 2023 ONSC 497; Lavallee v. Isak, 2022 ONCA 290; Thorpe v. Boakye, 2022 ONSC 7176; Zoutman v. Graham, 2020 ONCA 767; Crookes v. Newton, 2011 SCC 47; Grant v. Torstar Corp.¸2009 SCC 61 at para. 28; Warman v. Grosvenor (2008), 2008 57728 (ON SC), 92 O.R. (3d) 663 at paras. 52-57 (S.C.J.); Lysko v. Braley (2006), 2006 11846 (ON CA), 79 O.R. (3d) 721 (C.A.); Mantini v. Smith Lyons LLP (No. 2) (2003), 2003 22736 (ON CA), 64 O.R. (3d) 516 (C.A.), leave to appeal to S.C.C. ref’d [2003] S.C.C.A. No. 344; Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130; Botiuk v. Toronto Free Press Publications Ltd., 1995 60 (SCC), [1995] 3 S.C.R. 3.

[^7]: Crookes v. Newton, 2011 SCC 47 at para. 19.

[^8]: Kam v. CBC, 2021 ONSC 1304, aff’d 2022 ONCA 13; Bernstein v. Poon, 2015 ONSC 155.

[^9]: Walsh Energy Inc. (c.o.b. The Energy Centre) v. Better Business Bureau of Ottawa-Hull Inc. (c.o.b. Better Business Bureau Serving Eastern and Northern Ontario and Outaouais, 2018 ONCA 383 at para. 28; Grant v. Torstar, 2009 SCC 61 at para. 28.

[^10]: Kam v. CBC, 2021 ONSC 1304, aff’d 2022 ONCA 13; Skafco Ltd. (c.o.b. Robbie's Italian Restaurant) v. Abdalla 2020 ONSC 136; Walsh Energy Inc. (c.o.b. The Energy Centre) v. Better Business Bureau of Ottawa-Hull Inc. (c.o.b. Better Business Bureau Serving Eastern and Northern Ontario and Outaouais, 2018 ONCA 383; Bernstein v. Poon, 2015 ONSC 155; Cusson v. Quan, 2007 ONCA 771; Botiuk v. Toronto Free Press Publications Ltd., 1995 60 (SCC), [1995] 3 S.C.R. 3 at para. 62.

[^11]: Color Your World Corp. v. Canadian Broadcasting Corp. (1998), 1998 1983 (ON CA), 38 O.R. (3d) 97 (C.A.); Weaver v. Corcoran, 2017 BCCA 160; DeKoter v. McLeod, 2019 ABCA 163.

[^12]: Taseko Mines Limited v. Western Canada Wilderness Committee, 2017 BCCA 431.

[^13]: Canadian Union of Postal Workers v. B'nai Brith Canada, 2021 ONCA 529, aff’g 2020 ONSC 323; Skafco Ltd. (c.o.b. Robbie's Italian Restaurant) v. Abdalla 2020 ONSC 136 at para. 15; Montour v. Beacon Publishing Inc. (c.o.b. Frontline Safety & Security), 2019 ONCA 246 at paras. 27-42; Lascaris v. B’nai Brith Canada, 2019 ONCA 163 at para. 40-41; Awan v. Levant, 2016 ONCA 970, aff’g 2014 ONSC 6890, leave to appeal to S.C.C. ref’d [2017] S.C.C.A. 71; Cooke v. MGN Ltd., [2015] 2 All ER 622 at para. 43 (C.A.); Grant v. Torstar Corp., 2009 SCC 61

[^14]: Tilbury v. Coulson, 2023 BCSC 189; St. Pierre v. Pacific Newspaper Group Inc. and Skulsky, 2006 BCSC 241;Chopra v. Hodson, 2001 ABQB 380.

[^15]: 2018 ONSC 4207.

[^16]: R.S.O. 1990, c. L.12.

[^17]: Bent v. Platnick, 2020 SCC 23at para. 121; Prud'homme v. Prud'homme, 2002 SCC 85.

[^18]: Grant v. Torstar Corp., 2009 SCC 61at para. 94.

[^19]: Catalyst Capital Group Inc. v. West Face Capital Inc., 2021 ONSC 7957 at para. 63; 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22 at paras. 20-31.

[^20]: Catalyst Capital Group Inc. v. West Face Capital Inc., 2021 ONSC 7957 at para. 63; Canadian Thermo Windows Inc v. Seangio, 2021 ONSC 6555 at para. 87; 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22 at paras. 28-30.

[^21]: Canadian Therma Windows Inc v. Sango, 2021 ONSC 6555 at para. 89; Ontario Inc. v. Moore, 2020 ONSC 4553 at para. 20; 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22 at paras. 27-30; Grant v. Torstar Corp., 2009 SCC 61.

[^22]: 2009 SCC 61.

[^23]: [1969] 2 Q.B. 375 (C.A.).

[^24]: 1704604 Ontario Ltd. v. Pointes Protection Assn., 2018 ONCA 685 at para. 55, aff’d 2020 SCC 22; Levant v. Day, 2019 ONCA 244 at para. 10, aff’g 2017 ONSC 5956, leave to appeal refused [2019] S.C.C.A. No. 194; Amorosi v. Barker, 2019 ONSC 4717 at para. 11.

[^25]: Sokoloff v. Tru-Path Occupational Therapy Services Ltd, 2020 ONCA 730; Nanda v. McEwan 2020 ONCA 431 at para. 37; Levant v. Day, 2019 ONCA 244 at para. 11, aff’g 2017 ONSC 5956, leave to appeal refused [2019] S.C.C.A. No. 194.

[^26]: Platnick v. Bent, 2018 ONCA 687 at para. 38, aff’d 2020 SCC 23; 1704604 Ontario Ltd. v. Pointes Protection Assn., 2018 ONCA 685 at paras. 55–65, aff’d 2020 SCC 22.

[^27]: Armstrong v. Corus Entertainment Inc., 2018 ONCA 689 at para. 15; Able Translations Ltd. v. Express International Translations Inc., 2018 ONCA 690 at para. 19.

[^28]: Nanda v. McEwan, 2020 ONCA 431 at para. 35; New Dermamed Inc. v. Sulaiman, 2018 ONSC 2517, aff’d 2019 ONCA 141; Grant v. Torstar Corp.¸2009 SCC 61 at paras. 102-105.

[^29]: Catalyst Capital Group Inc. v. West Face Capital Inc., 2021 ONSC 7957; Bradford Travel and Cruises Ltd. v. Viveiros, 2019 ONSC 4587 Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686.

[^30]: 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22.

[^31]: 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22 at para. 52.

[^32]: 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22 at para. 37.

[^33]: 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22 at paras. 32-54.

[^34]: 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22 at para. 50.

[^35]: 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22 at para. 51-60 (S.C.C.).

[^36]: 1704604 Ontario Ltd. v. Pointes Protection Assn., [2018] O.J. No. 4449, 2018 ONCA 685 at paras. 83–84 (Ont. C.A.), leave to appeal granted [2018] S.C.C.A. No. 467 affd 2020 SCC 22 (S.C.C.).

[^37]: Levant v. Day, 2019 ONCA 244 at para. 14, affg 2017 ONSC 5956, leave to appeal refused [2019] S.C.C.A. No. 194 (S.C.C.); Bondfield Construction Co. v. Globe and Mail Inc., 2019 ONCA 166 at para. 14; Amorosi v. Barker, 2019 ONSC 4717.

[^38]: Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corp., 2021 ONCA 26; Bondfield Construction Co. v. Globe and Mail Inc., 2019 ONCA 166 at para. 15, rev’g 2018 ONSC 3347.

[^39]: Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corp., 2021 ONCA 26; New Dermamed Inc. v. Sulaiman, 2019 ONCA 141 at para. 12.

[^40]: 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22 at paras. 69-71.

[^41]: 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22 at paras. 69-71.

[^42]: 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22 at para. 44; Magno v. Balita, 2018 ONSC 3230 at para. 36; Rutman v. Rabinowitz 2018 ONCA 80 at paras. 62-63, aff’g 2016 ONSC 5864; Hill v. Church of Scientology, 1995 59 (SCC), [1995] 2 S.C.R. 1130 at paras. 167-172.

[^43]: Canadian Union of Postal Workers v. B’nai Brith Canada, 2021 ONCA 529, aff’g 2020 ONSC 323; Skafco Ltd. (c.o.b. Robbie's Italian Restaurant) v. Abdalla 2020 ONSC 136 at para. 15; Montour v. Beacon Publishing Inc. (c.o.b. Frontline Safety & Security), 2019 ONCA 246 at paras. 27-42; Lascaris v. B’nai Brith Canada, 2019 ONCA 163 at para. 40-41; Awan v. Levant, 2016 ONCA 970, aff’g 2014 ONSC 6890, leave to appeal to S.C.C. ref’d [2017] S.C.C.A. 71; Cooke v. MGN Limited, [2015] 2 All ER 622 at para. 43 (C.A.); Grant v. Torstar Corp., 2009 SCC 61.

[^44]: 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22 at para. 61-82.

[^45]: 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22 at para. 61-82.

[^46]: United Soils Management Ltd. v. Mohammed, 2019 ONCA 128at para. 38.

[^47]: United Soils Management Ltd. v. Mohammed, 2019 ONCA 128at para. 36.

[^48]: The Catalyst Capital Group Inc. v. Veritas Investment Research Corporation, 2017 ONCA 85; Guergis v. Novak, 2013 ONCA 449; Lysko v. Braley (2006), 2006 11846 (ON CA), 79 O.R. (3d) 721 (C.A.) ; Magnotta Winery Ltd. v. Ziraldo, 1995 7122 (ON SC); Paquette v. Cruji, 1979 1964 (ON SC).

[^49]: 2006 BCSC 241.

[^50]: 2001 ABQB 380.

[^51]: Thompson v. Cohodes, 2017 ONSC 2590; Accruent LLC v. Mishimagi, 2016 ONSC 6924.

[^52]: Ferreira v Da Costa, 2019 ONSC 2990