Court File and Parties

COURT FILE NO.: CV-20-9276 DATE: 2023-05-15

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Erica McDonald-Gertz and Nicole St-Jean Plaintiffs – and – Cristina Scarpellini Defendant

Counsel: Réjean Parisé, for the Plaintiffs Monty Dhaliwal, for the Defendant

HEARD: October 27, 2022

Decision on Motion

Cullin, j.

Overview

[1] This is a motion by the Defendant, Cristina Scarpellini (the “Defendant”), seeking relief pursuant to s.137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“the CJA”), also known as a “Anti-SLAPP” motion. The motion is opposed by the Plaintiffs, Erica McDonald-Gertz and Nicole St-Jean (collectively, the “Plaintiffs”).

Summary of the Facts

[2] There is a lengthy history between the Plaintiffs and the Defendant. Suffice it to say theirs has been a relationship marred by conflict. For this purpose of this summary, I will restrict myself to a review of the chronology surrounding the claim before the court. Further details will be discussed as necessary in addressing particular issues.

[3] The Plaintiffs are employees of Sudbury and Area Victim Services (“SAVS”), an entity created by the Ministry of the Attorney General (the “Ministry”) with a mandate to deliver services to victims of crime. SAVS has existed since 2003. The Plaintiff, Erica McDonald-Gertz (the “Plaintiff McDonald-Gertz”), is the Executive Director of SAVS and the Plaintiff, Nicole St-Jean (the “Plaintiff St-Jean”), leads its Human Trafficking Initiative.

[4] The Defendant operates Angels of Hope Against Human Trafficking (“AOH”); she is its founder and Executive Director. AOH has existed since 2015. Its mandate is to deliver support to survivors of human trafficking and sexual exploitation.

[5] It is undisputed that SAVS and AOH both deliver services to vulnerable individuals, and that fundamental to the delivery of those services is a relationship of trust between the organizations and their respective clients, as well as stable working relationships with community partners and government funding bodies such as the Ministry. It is also undisputed that, at times, SAVS and AOH intersect with one another when offering services.

[6] The Plaintiffs’ claim arises from a “cease and desist” letter, dated April 14, 2020 (the “Letter”). It was sent by a lawyer on behalf of the Defendant to the Plaintiffs. The Defendant subsequently sent a copy of the Letter to the Chair of the SAVS Board of Directors and to a representative at the Ministry assigned to the SAVS program. The Letter alleged that the Plaintiffs were making defamatory and libelous statements about the Defendant; in particular, it alleged that the Plaintiffs had made following five statements (the “Disputed Statements”):

a. That the Defendant was using substances at an open forum;

b. That the public should not utilize AOH services as they were not trustworthy and caused harm to clients;

c. That the public should not work with the Defendant and AOH as they were not reputable;

d. That monies were mishandled, and fraudulent activity was happening within AOH; and,

e. That the Defendant was crazy, unstable, and psychologically unwell and should not be working in the social service field.

[7] The Plaintiffs responded with their own lawyer’s letter denying that they had made the Disputed Statements and demanding a retraction. The Defendant did not respond to the Plaintiffs’ demand. The Plaintiffs followed with a Statement of Claim (the “Claim”). Among other things, the Claim alleged:

a. That the publication of the Letter to SAVS and to the Ministry was defamatory to the Plaintiffs.

b. That the Plaintiffs’ individual reputations were critical to their ability to be employed by SAVS or any community-based organization, and to their ability to practice within their profession.

c. That the publication of the Letter had caused harm to the Plaintiffs.

[8] The Defendant responded to the Claim with a Statement of Defence and Counterclaim. The Counterclaim sought general and special damages, aggravated damages, and punitive damages for defamation and injurious falsehood. The defamatory statements alleged in the Counterclaim were essentially the same as the Disputed Statements described in the Letter.

[9] The Statement of Defence and Counterclaim was followed by the Defendant’s Notice of Motion seeking the following relief:

a. An Order dismissing this proceeding pursuant to s. 137.1(3) of the CJA;

b. An Order for costs of this motion and the entire proceeding on a full indemnity basis, pursuant to s. 137.1(7) of the CJA; and,

c. An Order for damages against the Plaintiffs in the amount of $50,000.00, pursuant to s. 137.1(9) of the CJA.

[10] This is the motion which is presently before me.

The Evidence

[11] The evidentiary record consisted of affidavit evidence and cross-examination transcripts.

[12] Affidavits were filed from: the Plaintiff McDonald-Gertz; the Defendant (an affidavit and a reply affidavit); Lynzy Lalande, a former Board member of SAVS and current peer support worker and program co-ordinator with AOH (an affidavit and a reply affidavit); and Carla Ocampo, a peer support worker with AOH.

[13] Cross-examination transcripts and undertakings and refusals charts were filed with respect to: the Plaintiff McDonald-Gertz; the Defendant; Lynzy Lalande; and Carla Ocampo.

The Law

[14] This motion is rooted in s.137.1 of the CJA.

[15] In 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 (“Pointes”), at para. 18, the Supreme Court of Canada summarized the operation of this legislation as follows:

In brief, s. 137.1 places an initial burden on the moving party - the defendant in a lawsuit - to satisfy the judge that the proceeding arises from an expression relating to a matter of public interest. Once that showing is made, the burden shifts to the responding party - the plaintiff - to satisfy the motion judge that there are grounds to believe the proceeding has substantial merit and the moving party has no valid defence, and that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. If the responding party cannot satisfy the motion judge that it has met its burden, then the s. 137.1 motion will be granted and the underlying proceeding will be consequently dismissed.

[16] The term, “public interest” in the first stage of the court’s analysis, “should be given a broad and liberal interpretation” (Pointes, at para. 26). The burden on the Defendant is not onerous, and the court does not embark upon a qualitative assessment of the expression at issue (Pointes, at para. 28). As the court noted, “Ultimately, the inquiry is a contextual one that is fundamentally asking what the expression is really about.” (Pointes, at para. 30)

[17] If triggered, the second stage of the court’s analysis shifts the burden to the Plaintiff.

[18] The second stage of the court’s analysis involves an assessment of the merits of the Plaintiff’s claim and the Defendant’s defence of that claim, and a weighing of public interests.

[19] The merits-based examination was described by Côté J. in Platnick v. Bent, 2020 SCC 23 (“Platnick”) at paras. 87-88 as follows:

In Pointes Protection, this Court clarifies the fact that unlike s. 137.1(3), which requires a showing on a balance of probabilities, s. 137.1(4)(a) expressly contemplates a “grounds to believe” standard instead: para. 35. This requires a basis in the record and the law —taking into account the stage of the litigation — for finding that the underlying proceeding has substantial merit and that there is no valid defence: para. 39.

I elaborate here that, in effect, this means that any basis in the record and the law will be sufficient. By definition, “a basis” will exist if there is a single basis in the record and the law to support a finding of substantial merit and the absence of a valid defence. That basis must of course be legally tenable and reasonably capable of belief.

[20] The public interest-based examination was described by the Supreme Court in Pointes as, “the crux of the analysis” (Pointes, at para. 61). It is an open-ended analysis which involves a weighing of the public interest in permitting Plaintiff’s claim to proceed against the public interest in protecting the expression at issue.

[21] The public interest in permitting a Plaintiff’s claim to proceed considers the harm caused or likely to be caused to the Plaintiff by the Defendant’s expression. The Plaintiff must demonstrate not only that they have or are likely to suffer harm, but also that there is a causal link between the harm and the Defendant’s expression. It is sufficient for the Plaintiff to demonstrate either monetary or non-monetary harm. It is not, however, a determination on the merits and the Plaintiff is not required to prove damages. (Pointes, at paras. 69-71)

[22] Unlike the first stage of the analysis, the court does embark upon a qualitative assessment of the expression at issue in the second stage of the analysis. This involves a consideration of both the quality of and the motivation for the expression. (Pointes, at para. 74)

[23] Where, as here, the expression at issue is alleged to be defamatory, that should be considered by the court in conducting its analysis. As noted by the Supreme Court in Platnick, at para. 163:

In Pointes Protection, this Court finds that the public interest in protecting an expression can be determined by reference to the core values that underlie s. 2(b) of the Canadian Charter of Rights and Freedoms, such as the search for truth, participation in political decision making, and diversity in forms of self-fulfilment and human flourishing: para. 77. That said, in Hill, this Court noted that “defamatory statements are very tenuously related to the core values which underlie s. 2(b)”: para. 106. In consistent fashion, this Court finds in Pointes Protection that there will be less of a public interest in protecting a statement that contains “gratuitous personal attacks” and that the “motivation behind” the expression will be relevant to the inquiry: paras. 74-75 (emphasis omitted).

Positions of the Parties

Defendant’s Position

[24] The Defendant submits that the Letter was an expression made on a matter of public interest – namely, protecting her reputation and the reputation of AOH as service-providers to members of the public who are victims of human trafficking; and, limiting the damage to her and to AOH which may be caused by the Disputed Statements.

[25] The Defendant further submits that she has valid defences to the Plaintiffs’ claim for defamation. She relies on the defence of justification; she submits that the Letter is substantially true, or in the alternative it is true in substance and in fact. Alternatively, she relies on the defence of qualified privilege; she submits that she had an interest or duty in publishing the correspondence, and the recipients had an interest or duty in receiving it.

Plaintiffs’ Position

[26] The Plaintiffs submit that the Defendant’s motion is a misuse of the anti-SLAPP legislation. They submit that it was the Defendant who defamed the Plaintiffs by issuing a letter containing false allegations to the SAVS Board and the Ministry. They argue that the Defendant forced them to seek relief from the court by failing to retract the Letter.

[27] It is the Plaintiffs’ position that anti-SLAPP legislation is not intended to deny the Plaintiffs or any individual the ability to defend themselves against false allegations. They argue that, in the circumstances, the Defendant's motion should be dismissed.

Analysis

Stage One:

Does the proceeding arise from an expression relating to a matter of public interest?

[28] In Grist v. TruGrp Inc., 2021 ONCA 309, at para. 19, the Court of Appeal noted that, “The public interest includes such matters as the establishment, use, allocation, and maintenance of shared public goods, and therefore protects discussion and advocacy about the distribution of benefits and burdens of social life.”

[29] The expression at issue is the Letter, which speaks to slander and defamation of the Defendant personally, but also refers to statements made about AOH as an organization and about the delivery of services to the public by the Defendant and AOH. The Disputed Statements particularized in the Letter were made to, “clients and professionals” involved with the Defendant and AOH.

[30] While the Letter was addressed and sent to the Plaintiffs, the Defendant acknowledges in her evidence that she subsequently took steps to send it to the Chair of the SAVS Board and to the Ministry. Among other reasons, it is the Defendant’s evidence that she took those steps in order to, “express [her] concerns” about SAVS.

[31] While the Letter addresses allegations which are undoubtedly highly personal to all involved parties, at its core both the Letter and this proceeding arise from an apparent conflict between the principals of two not-for-profit organizations that not only deliver victim services to the public, but also rely on public funds to deliver those services.

[32] The public has an interest in ensuring that the principals of the organizations that it supports through donations and government funds conduct themselves with integrity. Conflicts between employees should not be permitted to interfere with the delivery of publicly funded services to vulnerable populations. Likewise, those conflicts should not be waged at the expense of the public. When the principals of publicly funded organizations depart from these expectations, it is in the public interest to ensure that there is a pathway through which to report the conduct so that it may be investigated and, if appropriate, acted upon.

[33] I am persuaded on a balance of probabilities that the expression at issue in this proceeding relates to a matter of public interest; specifically, the Defendant’s concerns about the conduct of the principals of SAVS. The Defendant has therefore satisfied her onus.

Stage Two:

Are there grounds to conclude that the Plaintiffs’ claim has substantial merit?

[34] The Plaintiffs claim damages for defamation. This cause of action was well-summarized by Pinto J. in Mazhar v. Farooqi, 2020 ONSC 3490, at para 44:

To have a legally tenable cause of action, a plaintiff in any defamation case must lead evidence to establish the following elements of the tort: (1) that the words complained of referred to the plaintiff; (2) that the words were communicated to at least one other person; and (3) that the words complained of were defamatory in the sense of tending to lower the plaintiff's reputation in the eyes of a reasonable person: Amorosi v. Barker, 2019 ONSC 4717, at para. 21, citing Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3, at paras. 61-62; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 164.

[35] It is not disputed that the Letter referred to the Plaintiffs, and that it was circulated to the Chair of the SAVS Board and to a Ministry representative. At issue is whether the Letter was defamatory to the Plaintiffs.

[36] The Plaintiffs allege that the Defendant defamed them by accusing them of defaming her. More plainly, the Plaintiffs say that the Letter accused them of lying about the Defendant and AOH; they contend that this is defamatory because, “The essential element in the community work being done is trust.” In addition to any impact within the community, they allege that the Letter has harmed their relationship with their employer and its government funding agency.

[37] The burden of proof required of the Plaintiffs is relatively low, and they are not required to demonstrate that they have suffered actual reputational harm (Platnick, at para. 96). As noted by the court in WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 78, to establish prima facie proof of defamation, there must be, “a realistic threat that the statement, in its full context, would reduce a reasonable person’s opinion of the plaintiff”.

[38] I am satisfied that a reasonable person’s opinion of the Plaintiffs would be undermined if they believed that the Plaintiffs had untruthfully made any of the Disputed Statements. It is my view that a reasonable person’s trust in the Plaintiffs would be shaken if they believed that the Plaintiffs had deceitfully advanced their own interests and those of their organization at the expense of the Defendant and her organization, or if they believed that the deceit had interfered with the delivery of publicly funded services to vulnerable individuals.

[39] The Plaintiffs have therefore satisfied their onus of demonstrating that there are grounds to believe that their proceeding has substantial merit.

Are there grounds to conclude that the Defendant has no valid defence?

[40] The Defendant advances two defences to the Plaintiffs’ claim: (1) justification; and (2) qualified privilege.

[41] The defence of justification requires a Defendant to prove, “the substantial truth of the "sting", or the main thrust, of the defamatory words” (Cusson v. Quan, 2007 ONCA 771, at para. 35, rev’d on other grounds, 2009 SCC 62).

[42] The defence of qualified privilege requires a Defendant to prove that they had an interest or duty to make a defamatory statement and the party to whom the statement was made had a duty or interest to receive it. Statements made with malice, spite, ill-will or ulterior purpose, or with knowledge of the statement’s falsity or recklessness as to its falsity are not protected by qualified privilege. The statements must not exceed what is reasonably appropriate having regard to the context in which they are used. (Cusson, at paras. 38-40).

[43] The Plaintiffs categorically deny making the Disputed Statements. At trial, provided that the Plaintiffs establish the elements of the tort of defamation, the Disputed Statements would be presumed false unless the Defendant proves otherwise (Cusson, at para. 35).

[44] The Defendant was not present when the Disputed Statements were communicated. Her allegations rely upon information provided to her by third parties.

[45] The evidentiary record regarding the Disputed Statements consists of the following:

a. The evidence of Lynzy Lalande that, during an event in March 2018, she was advised by the Plaintiff St-Jean that the Defendant was, “using again”; the Plaintiff St-Jean indicated that she received this information from a student who completed a placement at SAVS after her placement at AOH was cut short because the Defendant had, “health issues and prescribed by her physician she was given Oxy’s”. Ms. Lalande confirmed in her evidence that she had received similar information from the Defendant. Initially, Ms. Lalande’s evidence disclosed a “draft” email account of the conversation which did not include contextual information favourable to the Plaintiffs; Ms. Lalande was compelled to acknowledge this error when the Plaintiff MacDonald-Gertz produced the original email in her evidence.

b. The evidence of Carla Ocampo that, during a phone conversation between herself and the Plaintiff McDonald-Gertz in August 2019, she was advised by the Plaintiff McDonald-Gertz that, “Cristina is a drug addict and still uses drugs. She’s crazy and unstable” and that, “Id like to know where all the money Cristina raises goes to, Victim services provides everything survivors need, she’s obviously mishandling the money and using it for herself.” The Plaintiff McDonald-Gertz denied making these statements. Ms. Ocampo initially testified that, approximately one year later, she emailed a summary of that conversation to the Defendant. When asked on cross-examination to produce that email, she was compelled to acknowledge that she had erred and that she had, in fact, provided an oral account to Ms. Lalande who then prepared a typed summary.

c. A typewritten report purporting to be authored by Karishma Bunton aka Kory Horsley summarizing a conversation between her and the Plaintiff McDonald-Gertz in September 2019 in which the Plaintiff McDonald-Gertz advised her that she “shouldn’t trust Cristina or her organization Angels of Hope, she made comments that Cristina does not have lived experience in sex work only addiction. She had mentioned that Angel’s of Hope was not an agency that could truly help survivors of sexual exploitation.” The Plaintiff McDonald-Gertz denied making these statements. The Defendant was asked on cross-examination to provide contact information for Ms. Bunton/Horsley and was unable to do so. There was reference in the report to a recording of the conversation with the Plaintiff McDonald-Gertz which was also requested but not produced.

[46] The evidence of the Plaintiff McDonald-Gertz discloses a long-standing conflict between herself and the Defendant which has adversely impacted their professional relationship and the interactions between their organizations. It is her evidence that this conflict has culminated in complaints to police and government agencies, negative social media posts, and litigation.

[47] At this stage, the onus is on the Plaintiffs to demonstrate there are grounds to conclude that the defences advanced by the Defendant are not valid. Once again, the burden of proof required of the Plaintiffs is relatively low.

[48] With respect to the defence of justification, I find that the Plaintiffs’ denial of the allegations of Ms. Bunton/Horsley are unchallenged by any admissible evidence, and that the Plaintiffs have demonstrated that the allegations of Ms. Lalande and Ms. Ocampo are fragile as a result of their partisan relationships with the Defendant and lapses in their recollections of key elements of their evidence. I find that there are grounds to conclude that the Defendant will be unable to prove the substantial truth of her allegations that she was defamed by the Plaintiffs.

[49] With respect to the defence of qualified privilege, it is my view that there is ample evidence before me upon which a court could find that the Defendant’s communication of the Letter to the SAVS Board Chair and the Ministry was motivated, in whole or in part, by spite, malice, ill-will or ulterior purpose. It is clear from the evidence that there was animus between the Plaintiffs and the Defendant, and that the Defendant had publicly aired grievances against the Plaintiffs on prior occasions, at times inappropriately. It would not be difficult for a court to conclude that the communication of the Letter was made with the ulterior purpose of causing discord in the relationship between the Plaintiffs and their superiors.

[50] On the record before me, and specifically the evidence of the Defendant McDonald-Gertz and the evidence elicited from the Defendant and her witnesses on cross-examination, I am satisfied that the Plaintiffs have met their onus of demonstrating that there are grounds to believe that the Defendant has no valid defences.

Does the public interest in permitting the proceeding to continue outweigh the public interest in protecting the expression?

[51] There can be little doubt that the public has an interest in ensuring that the legitimate concerns of grassroots organizations are not stifled by established government (or in this case government-funded) institutions. One of the primary objectives of the anti-SLAPP provisions of the CJA is the protection of the public’s ability to speak truth to power; this objective is rooted in the notion of fairness.

[52] Conversely, the public also has an interest in ensuring that legitimate causes of action are determined on their merits, particularly when the cause of action seek to protect an individual’s reputation; this objective is also rooted in the notion of fairness. As noted by the Supreme Court in Platnick, at para. 1:

Freedom of expression and its relationship to the protection of reputation has been subject to an assiduous and judicious balancing over the course of this Court's jurisprudential history. While in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, this Court recognizes the importance of freedom of expression as the cornerstone of a pluralistic democracy, this Court has also recognized that freedom of expression is not absolute -- "[o]ne limitation on free expression is the law of defamation, which protects a person's reputation from unjustified assault": Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 2, per McLachlin C.J. Indeed, "the right to free expression does not confer a licence to ruin reputations": para. 58. That is because this Court has likened reputation to a "plant of tender growth [whose] blossom, once lost, is not easily restored": People ex rel. Karlin v. Culkin, 162 N.E. 487 (N.Y. 1928), at p. 492, per Cardozo J., cited by Cory J. in Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3, at para. 92. Values, therefore, are not without countervailing considerations.

[53] The Plaintiffs submit that fairness in this case requires that the court examine the totality of their involvement with the Defendant in determining where the public interest lies. It is their position that they have been subjected to escalating harassment and blame by the Defendant which culminated in the Letter. They argue that, if the Defendant’s motion is granted, they will be defenseless not only against the defamatory allegations in the Letter but against future harassment by the Defendant. They submit that dismissing their claim would be tantamount to sanctioning the Defendant’s conduct.

[54] The Defendant submits that fairness in this case requires that the court dismiss this action as it is yet another effort by the Plaintiffs to silence and discredit her. She argues that it is in the public interest that her ability to provide services to victims of human trafficking be protected, and that she be granted relief against the Plaintiffs for interfering with her ability to provide those services. She submits that granting her motion will send a clear message to the Plaintiffs that they cannot abuse their positions within SAVS to the detriment of the Defendant, her organization, and her clients.

[55] Upon reviewing the evidence in its totality, I prefer the position of the Plaintiffs. I find that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the Defendant’s expression.

[56] It is clear from the record before me that there have been ongoing difficulties in the relationship between the Plaintiffs and the Defendant. Separate and apart from the Letter and this Claim, each side has made prior accusations and allegations against the other. This litigation is the culmination of that conflict.

[57] Granting the Defendant’s motion, particularly in the face of her Counterclaim, would effectively be granting summary judgment in a complex dispute that, to be fairly determined, requires the court to weigh the credibility of witnesses and to consider events beyond those disclosed within the four corners of the Letter.

[58] As previously noted, the Plaintiffs and the Defendant helm organizations that deliver intersecting, publicly funded services to vulnerable individuals. Each has expressed concerns about the other; each has accused the other of lying about those concerns. The parties’ conflict has trickled into both their delivery of services and their relationships with community partners. I find that it is in the public interest to permit this proceeding to continue either to resolution or adjudication on a full evidentiary record. Ultimately, either the parties will settle upon a framework within which they can co-exist or their organizations, community partners, and funding bodies will receive a ruling which will allow them to identify the source of the conflict, take corrective action, and forge a path forward. Only then will the public interest be served.

Disposition

[59] For the reasons given, I dismiss the Defendant’s motion.

[60] Pursuant to s. 137.1(8) of the CJA, if a motion pursuant to s.137.1 is denied, the responding party is not entitled to costs on the motion unless the judge hearing the motion determines that an award is appropriate in the circumstances.

[61] In my view, this was not a motion which was so clearly destined to fail that an award of costs is appropriate. In the circumstances, I decline to order costs.

[62] It is my view that this is a matter which would benefit from a r. 50.13 case conference to explore methods to resolve the parties’ contested issues before they proceed further with this litigation. I am therefore directing that counsel contact the Trial Co-Ordinator to schedule a case conference; if requested, it may be scheduled before me.

The Honourable Madam Justice K.E. Cullin Released: May 15, 2023