Court File and Parties
COURT FILE NO.: CV-21-86277 DATE: 2023/05/26
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Paula Riopelle Plaintiff – and – Chris Riopelle and Aedan Helmer Defendants
Counsel: Avery Yandt, for the Plaintiff (Responding Party) Brendan Hughes, for the Defendant Aedan Helmer (Moving Party)
HEARD: January 6 and April 11, 2023
Reasons for decision on S. 137.1 motion
RYAN BELL J.
Overview
1This action concerns an article prepared by Aedan Helmer, a reporter, and published in print and electronically, in the Ottawa Citizen and Ottawa Sun newspapers on August 30, 2019. The article was originally entitled “Female realtor facing trial on assault, harassment, mischief charges after incidents in Orléans.”
2Paula Riopelle is a real estate agent based in Ottawa. In July 2019, she was charged with various offences including, assault, harassment, and operating a vehicle in a manner dangerous to the public. The article prepared by Mr. Helmer addressed the charges faced by Ms. Riopelle. In January 2021, Ms. Riopelle was convicted of two charges. An “Editor’s Note” was appended to the online version of the article, stating that she had been convicted of criminal harassment and mischief under $5,000.
3In April 2021, Ms. Riopelle commenced this action, seeking damages against Mr. Helmer on the basis that he invaded her privacy and conspired with her ex-husband, the defendant Chris Riopelle, to cause her injury.
4Mr. Helmer moves under s. 137.1 of the Courts of Justice Act for an order dismissing the action against him. Mr. Riopelle did not participate in the s. 137.1 motion. He contends Ms. Riopelle’s claims against him are deficient: the privacy claims because the article contains no private information, and the conspiracy claim because Mr. Helmer has never met Mr. Riopelle and corresponded with him on only one occasion. Mr. Helmer argues that Ms. Riopelle’s discontent with the article does not override the open court principle and the freedom of the press. He also argues that the claim is, in essence, a dressed up defamation claim that ought to be dismissed.
5Ms. Riopelle opposes the motion. She maintains that by omitting to report that Mr. Riopelle made the complaints giving rise to the charges against her following a heated moment during their acrimonious separation, Mr. Helmer sought to provoke a public reaction about Ms. Riopelle’s actions, when no reaction was warranted. Ms. Riopelle also argues that Mr. Helmer failed to investigate the source of the story and the true nature of the Riopelles’ relationship. Ms. Riopelle says the article is not an expression that ought to attract protection under s. 137.1.
6For the following reasons, Mr. Helmer’s motion is granted. The action against him is dismissed, with costs.
Facts
7The article was based on an anonymous tip received by the Ottawa Citizen’s “tips line.” Mr. Helmer did not hear the tip; rather, he was assigned the story by the editor who heard the tip.
8After reviewing the court materials, Mr. Helmer spoke to Ms. Riopelle’s defence counsel. Defence counsel told Mr. Helmer that Ms. Riopelle maintained her innocence and that there was an upcoming hearing. Counsel questioned why Mr. Helmer and the Ottawa Citizen were spending time on the story. Mr. Helmer then corresponded with Mr. Riopelle over Facebook; however, Mr. Riopelle declined Mr. Helmer’s request to discuss the charges against Ms. Riopelle. Mr. Riopelle asked Mr. Helmer to stop the story from being published and Mr. Helmer put Mr. Riopelle in contact with his editor. Mr. Helmer’s evidence is that this was the only time he corresponded with Mr. Riopelle. Mr. Helmer testified that he has never met Mr. Riopelle and he does not recall ever speaking with him.
9Mr. Helmer then prepared and submitted a draft of the article for publication. While he testified on cross-examination that he was “pretty confident” the story involved a relationship breakdown, he did not investigate the story further. He did not attempt to contact Ms. Riopelle, nor did he attempt to contact the second complainant.
10Mr. Helmer did not approve or review the final version of the published article and he is unaware of the changes that were made by his editor. Mr. Helmer did not write the original headline, nor did he provide input into the original headline. After publication, at Mr. Helmer’s request, the word “female” as the descriptor of “realtor” was removed from the article’s headline.
11The article details the charges against Ms. Riopelle but does not describe the domestic context in which most of the charges arose. In particular, Ms. Riopelle identifies the following omissions from the article: Mr. Riopelle made the complaints following a heated moment during their marital breakdown, the dispute occurred in the matrimonial home, Mr. Riopelle was the male homeowner referred to in the article, and Mr. Riopelle’s new girlfriend was the adult woman referred to in the article. The information listing the charges does not indicate that they were domestic in nature, nor was the “domestic violence” box on the information checked. The information does, however, identify Mr. Riopelle as the complainant in ten of the 16 charges laid against Ms. Riopelle.
12When he wrote the article, Mr. Helmer was not aware that the Riopelles were in the midst of a marital breakdown. In retrospect, Mr. Helmer agrees that the domestic nature of the Riopelles’ relationship ought to have been referenced in the article. He does not recall whether he originally included this information only to have it edited out before publication. In Mr. Helmer’s opinion, the article should not have been published.
13After publication, Mr. Helmer had nothing further to do with the article. In his view, the article ought not to have remained on the website. Mr. Helmer made it clear to his editor that he would no longer follow the story and that any updates were not his responsibility.
14On cross-examination, Ms. Riopelle stated that she does not believe there was an agreement between Mr. Helmer and Mr. Riopelle to publish the article. She testified that “unfortunately Mr. Helmer was put in a really awful position.” Ms. Riopelle also testified she does not think Mr. Helmer was acting maliciously, nor does she believe that Mr. Helmer was trying to injure her.
Section 137.1 of the Courts of Justice Act
15In 1704604 Ontario Ltd. v. Pointes Protection Association, Côté J., writing for the Supreme Court of Canada, described strategic lawsuits against public participation or “SLAPPs” as:
... lawsuits initiated against individuals or organizations that speak out or take a position on an issue of public interest ... In a SLAPP, the claim is merely a façade for the plaintiff, who is in fact manipulating the judicial system in order to limit the effectiveness of the opposing party’s speech and deter that party, or other potential interested parties, from participating in public affairs. 2020 SCC 22, at para. 2
16The shifting burdens on a s. 137.1 motion are set out in subsections (3) and (4). Section 137.1(3) places an initial burden on the moving party – the defendant – to satisfy the judge that the proceeding arises from an expression relating to a matter of public interest. Once that showing has been made, under s. 137.1(4) the burden shifts to the responding party – the plaintiff – to satisfy 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.
17If the plaintiff cannot satisfy the motion judge that they have met their burden under s. 137.1(4), then the s. 137.1 motion will be granted and the proceeding will be dismissed: Pointes, at paras. 18, 33.
18In Pointes, Côté J. described s. 137.1(4)(b) as “the key portion of the s. 137.1 analysis, as it serves as a robust backstop for motion judges to dismiss even technically meritorious claims if the public interest in protecting the expression that gives rise to the proceeding outweighs the public interest in allowing the proceeding to continue”: Pointes, at para. 62; Armstrong v. Corus, at para. 90; 2018 ONCA 689 Boyer v. Callidus Capital Corporation, at para. 26. 2023 ONCA 233
Does the article relate to a matter of public interest?
19Section 137.1(3) requires that: (i) there must be an expression; (ii) the expression must relate to a matter of public interest; and (iii) the proceeding for which dismissal is sought must arise from the expression: Pointes, at para. 31; Grist v. TruGrip Inc., at para. 16; 2021 ONCA 309 Boyer, at para. 28. In this case, there is no dispute that the article prepared by Mr. Helmer is an expression and that the action arises from the expression. The issue is whether the expression relates to a matter of public interest.
20The words “relates to a matter of public interest” are to be given a broad and liberal interpretation, consistent with the legislative purpose of s. 137.1(3): Pointes, at para. 26. In Pointes, at para. 27, Côté J. explained that in determining what constitutes a “matter of public interest” the same principles enunciated in Grant v. Torstar Corp. apply. 2009 SCC 61 The expression should be assessed “as a whole”, and it must be asked whether “some segment of the community would have a genuine interest in receiving information on the subject: Grant, at paras. 101-2.
21At this stage of the test, there is no qualitative assessment of the expression. As Côté J. observed at para. 28 of Pointes,
The statutory language used in s. 137.1(3) confirms that “public interest” ought to be given a board interpretation. Indeed, “public interest” is preceded by the modifier “a matter of”. This is important, as it is not legally relevant whether the expression is desirable or deleterious, valuable or vexatious, or whether it helps or hampers the public interest – there is no qualitative assessment of the expression at this stage. The question is only whether the expression pertains to any matter of public interest, defined broadly. The legislative background confirms that this burden is purposefully not an onerous one.
22Ultimately, the inquiry is a contextual one that, fundamentally, asks what the expression is really about. An expression that simply makes reference to something of public interest, or to a matter about which the public is merely curious will not be sufficient for the moving party to meet its burden under s. 137.1(3): Pointes, at para. 29. In Grist, at para. 18, the Court of Appeal for Ontario addressed the concept of the public interest as used in s. 137.1:
The scope of s. 137.1’s protection is set using the concept of the public interest. This is a concept that many have found difficult to apply. The most detailed exploration of the concept is provided in Grant v. Torstar ... in the analogous context of the law of defamation. That case emphasizes that the public interest is not a descriptive concept; it is not a matter of ascertaining what the public, or any subgroup, believes to be interesting, entertaining or worth their attention: at para. 102. Instead, “there is necessarily a normative aspect to what is ‘genuinely’ a matter of public interest”: Sokoloff, at para. 18. That is, the statement must address an issue “about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached”: Grant, at para. 105, citing Raymond E. Brown, The Law of Defamation in Canada, loose-leaf, (2008-Rel. 3) 2nd ed. (Scarborough: Carswell, 1999), vol. 2, at pp. 15-137 and 15-138. Again, the fact of notoriety or controversy is not sufficient in itself – one must assess the reason for the notoriety.
23Mr. Helmer argues that the article details publicly filed criminal charges against Ms. Riopelle and that, while the charges may have related to domestic issues, the charges themselves are by no means private: they were tried publicly and transparently pursuant to the open court principle. The open court principle, in Mr. Helmer’s submission, underpins the article and is of the utmost concern to Canadians.
24For her part, Ms. Riopelle contends that, at its core, the article is about the Riopelles’ acrimonious divorce, and is not a matter that has any public interest component. She argues that the open court principle does not, in itself, bring the article into the sphere of public interest. Ms. Riopelle maintains the expression is not genuinely a matter of public interest, nor does it address an issue of substantial concern to a segment of the community. In this regard, Ms. Riopelle relies on the fact that once the article was published, Mr. Helmer sought to have the article removed because of, in his words, “the sensitivity of it. Because of the domestic nature of the charges.”
25In my view, the article clearly relates to a matter of public interest. The gist of the article is the criminal charges faced by Ms. Riopelle. As the Supreme Court of Canada explained in Toronto Star Newspapers Ltd. v. Ontario, at para. 2, 2005 SCC 41 freedom of communication and freedom of expression “both depend for their vitality on public access to information of public interest. What goes on in the courts ought therefore to be, and manifestly is, of central concern to Canadians.”
26More recently, in Sherman Estate v. Donovan, at paras. 1-2, 2021 SCC 25 the Supreme Court emphasized:
This Court has been resolute in recognizing that the open court principle is protected by the constitutionally-entrenched right of freedom of expression and, as such, it represents a central feature of a liberal democracy. As a general rule, the public can attend hearings and consult court files and the press – the eyes and ears of the public – is left free to inquire and comment on the workings of the courts, all of which helps make the justice system fair and accountable. Accordingly, there is a strong presumption in favour of open courts. It is understood that this allows for public scrutiny which can be the source of inconvenience and even embarrassment to those who feel that their engagement in the justice system brings intrusion into their private lives. But this discomfort is not, as a general matter, enough to overturn the strong presumption that the public can attend hearings and that court files can be consulted and reported upon by the free press. [Emphasis added.]
27In a liberal democracy, the press, as the eyes and ears of the public, is free to inquire and comment on the workings of the courts, including the publicly available court files. That is what Mr. Helmer was engaged in doing – reporting on the criminal charges faced by Ms. Riopelle. Absent a publication ban, there is no restriction on publication.
28Ms. Riopelle seemingly seeks to carve out an exception to the open court principle in relation to domestic issues. I do not agree that any such exception exists. In Edmonton Journal v. Alberta (Attorney General), the appellant sought a declaration that s. 30 of the Alberta Judicature Act contravened ss. 2(b) and 15 of the Canadian Charter of Rights and Freedoms. 1989 SCC 20 Section 30(1) of the Judicature Act purported to restrict the publication of any details relating to matrimonial proceedings, including information on the evidence adduced at trial, other than specified general information. The majority of the Supreme Court declared s. 30(1), as well as s. 30(2), unconstitutional. Section 30(2) purported to restrict the publication of certain matters in civil proceedings. Writing for the majority, Cory J. emphasized the fundamental importance of freedom of expression to a democratic society:
It can be seen that freedom of expression is of fundamental importance to a democratic society. It is also essential to a democracy and crucial to the rule of law that the courts are seen to function openly. The press must be free to comment upon court proceedings to ensure that the courts are, in fact, seen by all to operate openly in the penetrating light of public scrutiny. Edmonton Journal, at para. 9
29Ms. Riopelle’s reliance on Grist in support of her position that the article does not relate to a matter of public interest is misplaced. In Grist, the Court of Appeal characterized the impugned expression as an allegation that a building restoration business had engaged in conduct that was tortious and contrary to labour law, in order to harm its competitors and gain an unfair advantage. The court concluded that the expression was fundamentally a private dispute to which s. 137.1 does not apply: Grist, at paras. 22-23. The nature of the impugned expression in Grist and the article reporting on the criminal charges faced by Ms. Riopelle are entirely different. The former did not engage the open court principle. Ms. Riopelle’s submission that the article did not have “public reach” invites a qualitative assessment that is inapplicable at this stage of the analysis.
30Because I am satisfied that the article relates to a matter of public interest, the burden now shifts to Ms. Riopelle to show there are grounds to believe that each claim has substantial merit and there is no valid defence to the claim: Courts of Justice Act, s. 137.1(4)(a). I consider first, Mr. Helmer’s contention that the action should not be permitted to proceed because the “true nature” of the claim is defamation. Next, I consider each claim individually under s. 137.1(4)(a)(i) and (ii). Finally, I consider the public interest hurdle under s. 137.1(4)(b).
Is this a dressed up defamation claim?
31For a proceeding to have substantial merit, it must have a “real prospect of success – in other words, a prospect of success that, while not amounting to a demonstrated likelihood of success, tends to weigh more in favour of the plaintiff”: Pointes, at para. 49. The motion judge must be satisfied that there is a basis in the record and the law for drawing such a conclusion; the claim must be legally tenable and supported by evidence that is reasonably capable of belief: Pointes, at para. 49.
32The notice and limitations provisions as well as the special defences that apply to a defamation action strike a balance between the competing values of protection of reputation and freedom of expression: Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, at para. 52, 2021 ONCA 25 citing Shtaif v. Toronto Life Publishing Co. Ltd., at para. 75. 2013 ONCA 405 Mr. Helmer argues that a plaintiff is not permitted to dress up what is essentially a defamation claim as another claim to effectively evade these protections: Elliott et al. v. Canadian Broadcasting Corp. et al., at paras. 59-60; Byrne v. Maas, at para. 9. Mr. Helmer argues that Ms. Riopelle’s claims are grounded in the allegation that she suffered reputational damage as a result of the publication of the article and that “dressing up” the claims as something else does not change their nature.
33Ms. Riopelle disputes what she says is an “overly narrow” characterization of her claim and states that the claim as pleaded is not one of defamation. She argues that defamation is not required to make out the tort of publicity which places a person in a false light: Yenovkian v. Gulian, at para. 171. 2019 ONSC 7279 In addition, Ms. Riopelle emphasizes that Chandra v. CBC – relied upon by Mr. Helmer for Mew J.’s observation that the alleged “dissemination or publication of private information already lies at the heart of the tort of defamation” – was decided prior to Kristjanson J.’s decision in Yenovkian, and prior to Doe 464533 v. D.(N.) 2016 ONSC 541 and Jane Doe 72511 v. M.(N.), 2018 ONSC 6607 which recognized the tort of public disclosure of private facts: Chandra, at para. 49. 2015 ONSC 5303
34Ms. Riopelle’s claim against Mr. Helmer is for damages for invasion of privacy and/or civil conspiracy, as well as aggravated and punitive damages. There are allegations throughout the statement of claim that Ms. Riopelle suffered reputational harm because of Mr. Helmer’s conduct. For example, it is alleged at para. 41 of the statement of claim:
By agreeing to write, publish, and promote a story that he knew or ought reasonably to have known was untrue, misleading, or a gross mischaracterization of the Plaintiff’s conduct, the Defendant Helmer unlawfully assisted the Defendant Riopelle to further his ongoing campaign to bully, intimidate, and harass the Plaintiff and unlawfully used his position as a journalist to undermine, undercut, or otherwise diminish her credibility and standing in the eyes of the public, her regulatory body, her employer, her family, and the court in the family law proceeding.
35In a defamation action, general damages for loss of reputation are presumed from the publication of the false statement and are awarded at large: Hill v. Church of Scientology, at para. 164. 1995 SCC 59 A different cause of action must “go beyond” these presumed damages: Subway, at para. 58. The statement of claim in this case is clear that the damages claimed go beyond the presumed damages for loss of reputation. For example, it is alleged at para. 37 of the statement of claim:
[b]y conducting themselves as they did, the Defendants conspired and combined together to procure a residual benefit for themselves knowing that their conduct was unlawful and done with the intention of injuring her and causing her significant economic losses.
36Other paragraphs in the statement of claim refer to Ms. Riopelle suffering emotional harm.
37Because Ms. Riopelle’s conspiracy and breach of privacy claims against Mr. Helmer seek damages beyond those that are merely reputational, and the alleged breaches of privacy are said to be the unlawful acts underlying the conspiracy claim, for purposes of this motion, I conclude that this is not a dressed up defamation claim.
38This does not end my analysis under s. 137.1(4)(a). I next consider each of the three claims individually in relation to both the substantial merit burden and the no valid defence burden.
Conspiracy claim
39An actionable conspiracy will exist in the following situations: (i) whether the means used by the defendants are lawful or unlawful, where the predominant purpose of the defendants’ conduct is to cause injury to the plaintiff; and (ii) where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result. In the latter situation, it is not necessary that the predominant purpose of the defendants’ conduct is to cause injury to the plaintiff. In both situations, however, there must be actual damage suffered by the plaintiff: PMC York Properties Inc. v. Siudak, at paras. 69-70. 2022 ONCA 635
(i) The substantial merit burden
40The substantial merit standard is more demanding than that applicable on a motion to strike, but less stringent than the test for summary judgment: Pointes, at paras. 50-51. As Côté J. explained in Pointes, at para. 52,
... 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 dive into the evidence to a later stage, where judicial powers of inquiry are broader and pleadings more fully developed. This is not to say that the motion judge should take the motion evidence at face value or that bald allegations are sufficient; again, the judge should engage in limited weighing and assessment of the evidence adduced. This might also include a preliminary assessment of credibility ... However, s. 137.1(4)(a)(i) is not an adjudication of the merits of the underlying proceeding; the motion judge should be acutely conscious of the stage in the litigation process at which a s. 137.1 motion is brought and, in assessing the motion, should be wary of turning his or her assessment into a de facto summary judgment motion, which would be insurmountable at this stage of the proceedings.
41Ms. Riopelle argues that Mr. Helmer and Mr. Riopelle’s communication before the article was published is sufficient to demonstrate that there are “grounds to believe” the conspiracy claim has merit at this early stage in the litigation. Ms. Riopelle says it would be premature for the court on this motion to dispense with her claim for civil conspiracy, having regard to the stage of the proceeding, the limited record – there is no evidence from Mr. Riopelle – and the potential for future evidence.
42I disagree. A civil conspiracy requires an agreement between the alleged conspirators. However, Mr. Helmer’s evidence is that he has never met Mr. Riopelle, does not recall ever speaking with him, and only corresponded with him once over Facebook when Mr. Riopelle declined Mr. Helmer’s request to discuss the charges against Ms. Riopelle. Ms. Riopelle herself does not believe there was an agreement between Mr. Helmer and Mr. Riopelle to publish the article. And significantly, Ms. Riopelle’s evidence is she does not believe that Mr. Helmer was trying to be malicious or that he was intentionally trying to cause her injury in writing the article.
43Ms. Riopelle has not satisfied me that there are grounds to believe the conspiracy claim has substantial merit. The evidence on the motion, including Ms. Riopelle’s own testimony, is, overwhelmingly, to the contrary.
(ii) Are there grounds to believe there is no valid defence?
44Mr. Helmer’s defence to the conspiracy claim is there was no agreement. The evidence on the motion amply supports the validity of this defence. Ms. Riopelle has not met her burden under either s. 137.1(4)(i) or (ii).
Publicity which places a person in a false light
45In Yenovkian, Kristjanson J. recognized the tort of publicity which places a person in a false light. In that case, the applicant father was found to have engaged in “outrageous and egregious conduct at the extreme of reprehensibility”: Yenovkian, at para. 197. At para. 170 of Yenovkian, Kristjanson J. adopted the elements of the tort as described in § 652E of the Restatement (Second) of Torts (2010):
One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
46In addition, Kristjanson J. noted the clarification in the Restatement that, while the publicity giving rise to the cause of action will often be defamatory, defamation is not required; it is enough for the plaintiff to show that a reasonable person would find it highly offensive to be publicly misrepresented as they have been. As Kristjanson J. observed, “[t]he wrong is in publicly representing someone, not as worse than they are, but as other than they are”: Yenovkian, at para. 171.
(i) The substantial merit burden
47Ms. Riopelle submits that the article placed her in a false light by,
... being so devoid of context that any reasonable reader would not have understood that the charges arose in the context of an acrimonious separation but, instead, would have understood that the charges involved a dispute with members of the public – at best a stranger but more probably one of Paula’s real estate clients.
48The underlying premise of Ms. Riopelle’s argument on this tort is that it was Mr. Helmer who “gave publicity” to the charges against her. The evidentiary record makes plain that this was not the case: Mr. Helmer was the author of the original draft of the article which he then submitted for publication, but he did not approve or review the final version, and he does not recall if his editor edited out information regarding the Riopelles’ relationship before publication. Mr. Helmer did not write the original headline, nor did he have input into it. On this basis alone, Ms. Riopelle cannot meet the substantial merit burden in respect of the false light tort.
49Mr. Helmer makes two additional responses to Ms. Riopelle’s argument. First, he argues that the tort of publicity which places a person in a false light is not legally tenable because the tort should not be recognized in a newspaper reporting context. Second, Mr. Helmer argues there was no communication of a falsehood about Ms. Riopelle, the article did not place her in a false light, it was not highly offensive, and there is no evidence that he acted with knowledge of or in reckless disregard as to any alleged falsity or false light.
50There is overlap between Mr. Helmer’s first argument and the arguments he advanced that the claim is a dressed up defamation claim. He argues that the law of defamation adequately serves the public in respect of claims for loss of reputation as against the press and that to broadly recognize what he characterizes as an “overlapping privacy tort” in this context risks undermining the freedom of the press and would “muddle” the defamation landscape, the defences available to the media, and the application of the Libel and Slander Act.
51Mr. Helmer relies on Chandra, where Mew J. did not allow the false light claim or the public disclosure of private facts claim (also invoked in this case) to be put to the jury; by contrast, the defamation and intrusion upon seclusion claims were allowed to proceed before the jury. As I have previously noted, however, Chandra pre-dated Kristjanson J.’s decision in Yenovkian.
52Mr. Helmer also relies on recent academic commentary questioning the need to adopt the false light tort in Canada and suggesting that doing so may unduly hamper the work of the media. Fraser Duncan, “Illuminating False Light: Assessing the Case for the False Light Tort in Canada” (2020) 43:2 Dal L.J. 605. He argues that, if recognized in a media context, a more restrictive version of the tort should be adopted for “situations where the publicity given to a non-disparaging falsehood constitutes a significant invasion of the plaintiff’s privacy.” Duncan, at 630. See also Parasiuk v. Can. Newspapers Co., . This, Mr. Helmer argues, would be consistent with Sharpe J.A.’s observation in Jones v. Tsige, at para. 73, 2012 ONCA 32 that claims for the protection of privacy may give rise to competing claims, foremost among them, claims for the protection of freedom of expression and freedom of the press:
As we are not confronted with such a competing claim here, I need not consider the issue in detail. Suffice it to say, no right to privacy can be absolute and many claims for the protection of privacy will have to be reconciled with, and even yield to, such competing claims.
53While noting these arguments, it is not necessary for me to decide this issue in order to determine the s. 137.1 motion, bearing in mind that, “as a court of law, we should restrict ourselves to the particular issues posed by the facts of the case before us and not attempt to decide more than is strictly necessary to decide that case.” Jones, at para. 21. For purposes of this anti-SLAPP motion, I have proceeded on the basis that the elements of the tort of publicity placing the plaintiff in a false light are as set out by Kristjanson J. in Yenovkian.
54Mr. Helmer’s second argument is that, having regard to the elements of the tort, Ms. Riopelle has not established there are grounds to believe her false light claim has substantial merit. He argues that her claim is not based on an allegedly false statement; rather, it is based on the fact that the article did not specify that most of the criminal charges were domestic in nature.
55I agree that the gravamen of Ms. Riopelle’s complaint against Mr. Helmer is his failure or neglect to present information. This is evident from Ms. Riopelle’s written submissions:
What [Helmer’s] article fails to say is that Paula’s ex-husband, Christopher Riopelle (“Chris”) made the complaints giving rise to the charges against Paula following a heated moment during their acrimonious separation. Although Helmer intentionally described Paula as a real estate agent, he left out any reference to the dispute having occurred in the matrimonial home, to Chris being the male homeowner, or to Chris’ new girlfriend being the adult woman. In excluding these key pieces of information, Helmer sought to provoke a public reaction about Paula’s actions, when in reality no reaction was warranted amounting to sensational journalism.
56It appears that the issue of whether this “passive” means of allegedly placing someone in a false light is sufficient to establish the tort has not been considered in Canada. A similar situation was considered by the court in Goodrich v. Waterbury Republican-American, Inc., 448 A.2d 1317, where the false light tort was introduced in Connecticut. In Goodrich, the reported facts were true but the plaintiff claimed there existed “additional circumstances which when expanded, cast the plaintiff in a more favorable light in keeping with reality.” Goodrich, at p. 1331. The court rejected this argument, finding that where an article is substantially true, false light will be avoided “regardless of [a] decision to omit facts that may place the plaintiff under less harsh public scrutiny.” Goodrich, at p. 1331.
57The facts in this case could not be more dissimilar to those before Kristjanson J. in Yenovkian. In Yenovkian, the father was found to have embarked on an egregious, outrageous, and intentional campaign to spread lies about the mother so as to cause the mother harm. While intentional omissions could rise to the level that an expression is no longer “substantially true”, that is not this case. The article does not represent Ms. Riopelle in a false light.
58Ms. Riopelle asserts that it is beyond question that the article is highly offensive. She points to the fact that the article was offensive to Ms. Riopelle’s defence counsel, so much so that it damaged Mr. Helmer’s reputation with counsel. She also relies on the fact that Mr. Helmer understood Mr. Riopelle found the article offensive.
59I disagree that there is evidence supporting this element of the tort. In the Restatement, “highly offensive” is described as a “major misrepresentation of [the plaintiff’s] character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable [person]”: Goodrich, at p. 1330. Ms. Riopelle was charged with criminal offences, including assault, harassment, mischief endangering life, and operating a motor vehicle in a manner dangerous to the public. The failure to identify the charges as domestic does not constitute a major misrepresentation of Ms. Riopelle’s character or activities such that a reasonable person would find the expression to be highly offensive.
60Finally, the false light tort requires that the defendant had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed. Ms. Riopelle submits that reckless disregard can include malice: Bent v. Platnick, at para. 138. 2020 SCC 23 She argues that it is unequivocal, on Mr. Helmer’s own evidence, that he knew of or acted in reckless disregard as to the truth when he wrote the article by leaving out the domestic nature of the dispute.
61Again, I disagree. While he agreed, in retrospect, that the domestic nature of the Riopelles’ relationship ought to have been referenced in the article, Mr. Helmer’s evidence was that when he wrote the article, he was not aware that the Riopelles were in the midst of a marital breakdown. Mr. Helmer could not recall whether he had indicated in the draft submitted to his editor that the charges were domestic in nature. Ms. Riopelle herself does not believe that Mr. Helmer acted with malice in writing the article. There is no basis in the record to establish knowledge or reckless disregard.
62I would go further. In my view, given that the false light of which Ms. Riopelle complains is based on the alleged meaning of the article, Ms. Riopelle would have to point to some evidence in the record that: (i) the public interpreted the article to mean she was accused of attacking one of her clients; and (ii) Mr. Helmer knew of or acted with reckless disregard as to this result. The evidence does not support either contention.
63I find that Ms. Riopelle has not met the substantial merit burden in relation to the false light claim.
(i) Are there grounds to believe there is no valid defence?
64Ms. Riopelle must show there are grounds to believe that Mr. Helmer has no valid defence to the false light claim – that is, she must show that the defences put in play are not legally tenable or supported by evidence that is reasonably capable of belief such that they can be said to have no real prospect of success: Bent, at para. 103; Pointes, at paras. 59-60.
65Yenovkian does not provide insight into the defences available against the false light tort. Relying on academic commentary and American jurisprudence that suggests the defences for false light claims “effectively mirror” those available in defamation lawsuits, Mr. Helmer advances the defences of truth or justification, responsible communication, and absolute privilege. Duncan, at pp. 616-617. Ms. Riopelle argues that none of these defences has been recognized in Canada as a defence to Ms. Riopelle’s claim and, on this basis alone, there is good reason to doubt whether Mr. Helmer’s defences are legally tenable.
66With respect, “good reason to doubt” is not the test under s. 137.1(4)(a)(ii). The word “no” is absolute; if there is any defence that may be valid, the plaintiff has not met their burden and the underlying claim should be dismissed: Pointes, at para. 58.
67Certain of the defamation defences are closely intertwined with the elements of the false light tort. For example, if the expression is shown to be true, the plaintiff will be unable to establish falsity – a required element of the false light tort. Similarly, a defendant that has engaged in responsible communication on a matter of public interest will not have acted with the requisite knowledge or reckless disregard to establish the false light tort. Accordingly, my analysis as to whether Ms. Riopelle has satisfied me that there are grounds to believe there is no valid defence focuses on the defences of truth or justification and responsible communication.
(a) Truth or justification
68To succeed on the defence of truth or justification, a defendant must show the substantial truth of the “sting” or main thrust of the statement: Bent, at para. 107; Libel and Slander Act, s. 22.
69Ms. Riopelle argues that the sting of the article is that she was charged with 16 criminal offences related to her profession as a realtor. Ms. Riopelle says that the article was woven together to build a story of her assaulting and harassing two strangers or clients in their home. She argues that Mr. Helmer will never be able to prove the statements in the article are true because she never harassed or engaged in threatening conduct against an adult woman in the home. Ms. Riopelle alleges that this falsehood is an integral part of the sting and taints the entire article.
70I do not accept this argument. The sting of the article is that Ms. Riopelle was charged with 16 offences. Mr. Helmer acknowledges that there were inaccuracies in the article: for example, the reference to “assaulted the male homeowner” should have read “assaulted the male occupant”, the information did not specify that Ms. Riopelle was charged with harassing an adult woman “in the home”, and two of the charges were conflated. These inaccuracies do not, however, in my view, detract from the “substantial truth” of the main thrust of the expression: Ryan v. Canadian Broadcasting Corp., at paras. 40-41. 2021 SKQB 12 Nor does the omission of the domestic element associated with most of the charges affect the substantial truth of the article. There is some evidence in the record, by way of online comments in response to the article, to support Mr. Helmer’s position that the article would not be reasonably understood to have the meaning suggested by Ms. Riopelle.
71Ms. Riopelle has not satisfied me that there are grounds to believe there is no valid defence of truth or justification.
(b) Responsible communication
72The defence of responsible communication on a matter of public interest has two components. First, the subject matter of the publication must be a matter of public interest: Grant, at para. 126. The public interest requirement has already been addressed in these reasons.
73Second, as set out in Grant at para. 126, the publisher must show that they were diligent in trying to verify the allegation, having regard to:
(i) the seriousness of the allegation; (ii) the public importance of the matter; (iii) the urgency of the matter; (iv) the status and reliability of the source; (v) whether the plaintiff’s side of the story was sought and accurately reported; (vi) whether the inclusion of the defamatory statement was justifiable; (vii) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth; and (viii) any other relevant considerations.
74Ms. Riopelle argues that a defence of responsible communication is bound to fail because of Mr. Helmer’s limited investigation: he attended the courthouse, obtained the information, called Ms. Riopelle’s defence counsel, failed to ask Mr. Riopelle about the parties’ relationship, failed to contact the second complainant, and failed to investigate or make inquiries as to the ownership of the property. Ms. Riopelle also argues that a defence of responsible communication is “doomed” because Mr. Helmer understood that the tipster and source for the article was Mr. Riopelle and because Mr. Helmer himself testified that the domestic nature of the dispute should have been included in the article.
75Mr. Helmer testified that he did not know that it was Mr. Riopelle who left the tip until after the article was published. The source of the article was the court record – publicly accessible information. Mr. Helmer argues that he has a very strong responsible communication defence. He says the article reported on the criminal charges against Ms. Riopelle, as distinct from allegations of criminality. He attended at the court and reviewed the publicly available information. He sought input from Mr. Riopelle. Mr. Helmer obtained comment from Ms. Riopelle through her counsel. Ms. Riopelle’s position and comments were included in the article.
76The second element of the defence of responsible communication does not require adherence to a standard of perfection: Rebel News v. Al Jazeera Media, at para. 62. 2021 ONSC 1035 Having regard to the factors set out in Grant and the evidentiary record before me, the defence of responsible communication may be valid. It follows that Ms. Riopelle has not met her burden under s. 137.1(4)(a)(ii) with respect to this defence.
Public disclosure of private facts
77The public disclosure of private facts tort has been recognized in Ontario: Doe 464533 and Jane Doe 72511. To establish liability, a plaintiff must prove that:
(i) the defendant publicized an aspect of the plaintiff’s private life; (ii) the plaintiff did not consent to the publication; (iii) the matter publicized or its publication would be highly offensive to a reasonable person; and (iv) the publication was not of legitimate concern to the public.
(i) The substantial merit burden
78As with the false light tort, Mr. Helmer argues that the tort of defamation is sufficient to protect reputational concerns and there is no need to recognize the public disclosure of private facts tort in the present context. As with the false light tort, for purposes of this motion, I have proceeded on the basis that the public disclosure of private facts tort can apply in a reporting context.
79I need only address the first element of the tort. I note, however, that my previous discussion about the “highly offensive” element of the false light tort applies equally here. Ms. Riopelle argues that had Mr. Helmer not written the article, these charges would have remained in Ms. Riopelle’s private life.
80With respect, this argument is flawed in two respects. First, it ignores the fact that it was not Mr. Helmer who publicized the charges. Second, the argument ignores the fact that the criminal charges that Ms. Riopelle was facing are not private facts. They were, at all times, publicly available in a court file. On cross-examination, Ms. Riopelle was unable to identify any private fact in the article. Her description – “[i]t’s a private matter with my family” – runs contrary to the public nature of the charges and the open court principle.
(i) Are there grounds to believe there is no valid defence?
81Mr. Helmer’s primary defence to the public disclosure of private facts claim is there was no disclosure of any private information that was not publicly available in the court file. The evidence in the record, including Ms. Riopelle’s own testimony, supports the validity of this defence.
82There is some intersection between the defence of absolute privilege advanced by Mr. Helmer and his defence that there was no disclosure of private facts. In Astley v. Verdun, at para. 13, D. Brown J., as he then was, described the defence of absolute privilege:
At common law, no action for defamation may be brought for words spoken or written during the ordinary course of judicial proceedings; they are cloaked with an absolute privilege ... As a result, statements made by a judge, jury, witness, party or counsel during a judicial proceeding are not subject to suit. So too, an action for defamation does not lie in respect of statements contained in a pleading filed in court, including documents such as facta. The absolute privilege applies even if allegations are irrelevant or made maliciously. [Citations omitted.]
83Common law privilege does not require that the words be published contemporaneously with the judicial proceedings to which they relate: Chidley-Hill v. Daw, at para. 16. 2010 ONCA 835
84Absolute privilege is not limited in its application to actions for defamation; the defence applies equally to any cause of action where the public interest in protecting the integrity of the judicial process will be impaired by permitting such claims to proceed: Hansra v. Joss, at para. 38, 2021 BCSC 805 citing Duncan v. Lessing. 2018 BCCA 9
85Ms. Riopelle argues that the defence of absolute privilege is not legally tenable because in this case, Mr. Helmer did not simply reproduce the criminal charge sheet; instead, he added information and “filled in blanks.”
86I disagree that the defence of absolute privilege is not legally tenable. The gist of the article is that Ms. Riopelle was charged with 16 criminal offences. Mr. Helmer asserts absolute privilege in respect of the criminal charges upon which he reported. Ms. Riopelle’s central complaint is Mr. Helmer’s omission of the domestic context in which a majority of the charges arose. But the court record itself did not identify the charges as domestic in nature. In this context, whether any additions or omissions by Mr. Helmer would detract from the absolute privilege he asserts may be a live issue; this does not mean, however, that the defence of absolute privilege is not legally tenable.
87Ms. Riopelle has failed to satisfy me that there are grounds to believe there is no valid defence to the public disclosure of private facts claim.
Public interest hurdle: s. 137.1(4)(b)
88Section 137.1(4)(b) is the “crux of the analysis”: Pointes, at para. 18. Ms. Riopelle must satisfy me that the harm suffered as a result of the expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. In light of my conclusions under s. 137.1(4)(a)(i) and (ii), it is not, strictly speaking, necessary for me to address this stage; I do so for the sake of completeness.
(i) Harm analysis
89Under s. 137.1(4)(b), the harm suffered by the responding party as a result of the moving party’s expression is weighed against the public interest in protecting that expression. Therefore, as a prerequisite to the weighing exercise, the responding party must show: (i) the existence of harm; and (ii) causation: Pointes, at para. 68.
90Ms. Riopelle alleges that, as a result of the article, she has suffered harm to her well-being. She says her reputation as a realtor was tarnished, her professional organization – the Real Estate Council of Ontario (“RECO”) – launched an investigation into the charges because of the article, her children were tormented at school, and she began seeking treatment from a therapist. She also claims she lost business opportunities as a result of the article.
91Mr. Helmer argues that Ms. Riopelle has failed to account for what he describes as the “baseline harm” – that is, the reputational injury that would have occurred from the mere fact that the criminal charges were reported. He argues that Ms. Riopelle must show the harm she alleges is beyond the baseline harm and that it was caused by the fact that the domestic nature of the charges was not reported.
92The evidence provided by Ms. Riopelle on the issue of harm can only be described as thin. The emails from work colleagues attached to Ms. Riopelle’s affidavit are double hearsay. The evidence produced regarding Ms. Riopelle’s real estate practice does not show a loss of income in the year the article was published as compared to the previous year. The therapy records that have been produced provide no indication that Ms. Riopelle sought treatment as a result of the article. As for the investigation launched by Ms. Riopelle’s professional organization, the link to the article in the Ottawa Citizen was emailed to RECO by a member of the Discipline Committee who came across the article online. Ms. Riopelle fails to acknowledge that, in making its inquiries in relation to the criminal charges, RECO was acting in accordance with its statutory obligations and, presumably, was required to do so whether or not the article included a reference to the domestic nature of the charges.
93I am not satisfied that Ms. Riopelle has made the requisite showings of harm and causation. Again, for the sake of completeness, I continue with my analysis on the assumption that both harm and causation have been shown.
(ii) Weighing of the public interest
94As I have previously observed, the public interest query under s. 137.1(3) is concerned with whether the expression relates to a matter of public interest; the assessment is not qualitative: Pointes, at para. 74. Under s. 137.1(4)(b), however, the public interest is relevant to the specific goals of permitting the proceeding to continue and protecting the impugned expression; the quality of the expression and the motivation behind it are relevant to the query under s. 137.1(4)(b): Pointes, at para. 74.
95The relevant factors in this case that bear on the public interest weighing exercise under s. 137.1(4)(b) include the importance of the expression, broader or collateral effects on other expressions on matters of public interest, and the potential chilling effect on future expression by a party or by others: Pointes, at para. 80.
96In this case, the public interest in allowing the action against Mr. Helmer to continue is far outweighed by the deleterious effects on the public interest in having free and unencumbered reporting of the court and its processes. The open court principle is protected by the constitutionally-entrenched right of freedom of expression and represents a central feature of a liberal democracy: Sherman Estate, at para. 1. The ability of the free press to consult and report on court files helps make the justice system fair and accountable.
97In recognizing the defence of responsible communication on a matter of public interest, McLachlin J. in Grant reasoned, “if the defences available to a publisher are too narrowly defined, the result may be ‘libel chill’, undermining freedom of expression and of the press” and “[f]ear of being sued for libel may prevent the publication of information about matters of public interest” with the result that “[t]he public may never learn the full truth on the matter at hand.” Grant, at para. 2, 54. The Supreme Court in Pointes specifically identified the potential chilling effect on future expression. A news agency and its reporters should, generally, be able to report on the content of court files without the fear of being sued for invasion of privacy. As Doherty J.A. observed in Armstrong, “[b]y enacting s. 137.1, the Legislature acknowledged that, in some circumstances, permitting the wronged party to seek vindication through litigation comes at too high a cost to freedom of expression.” Armstrong, at para. 90. That is the case here.
98Ms. Riopelle has not met her burden under s. 137.1(4)(b).
Conclusion
99Mr. Helmer’s motion under s. 137.1 of the Courts of Justice Act is granted. The action against him is dismissed.
100Mr. Helmer is entitled to his costs of the motion and in the action on a full indemnity basis unless I determine that such an award is not appropriate in the circumstances: Courts of Justice Act, s. 137.1(7). In the event the parties are unable to agree on costs, they may make written submissions limited to a maximum of three pages, excluding relevant attachments. Mr. Helmer shall deliver his costs submissions by June 9, 2023. Ms. Riopelle shall deliver her responding costs submissions by June 23, 2023. There shall be no right of reply. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
Justice R. Ryan Bell
Released: May 26, 2023
Schedule A
Female realtor facing trial on assault, harassment, mischief charges after incidents in Orléans
The defence lawyer for real estate agent Paula Riopelle is proclaiming her innocence on multiple charges of assault, harassment, mischief and threatening conduct related to two adult complainants.
Criminal charges were laid in June, with police alleging Riopelle unlawfully entered a home in Orléans on multiple occasions and assaulted the male homeowner. She is also charged with harassing an adult woman in the home and “engaging in threatening conduct” causing the man and woman to “reasonably to fear for (their) personal safety.”
The alleged incidents span 17 months between January 2018 and May 2019, and court records include four assault charges, four counts of unlawfully entering a dwelling, mischief and damage to property, and various harassment charges.
Riopelle faces 16 charges in total.
This newspaper is not naming the alleged victims in the case.
Riopelle’s defence lawyer, Mark Ertel, said his client is innocent.
“She is looking forward to demonstrating her innocence on all charges at trial,” Ertel said when reached for comment Thursday.
The five-day trial is set to be heard without a jury in October 2020. The defence has requested the matter be tried by an out-of-town judge.
According to the charge sheet filed in court, Riopelle is accused of unlawfully entering an Orléans home and assaulting the man on four separate occasions.
In one set of charges from an alleged incident in June 2018, Riopelle is accused of driving a vehicle outside the Orléans address “in a manner dangerous to the public and thereby caused bodily harm to (the male victim).”
She is charged with mischief in the same alleged incident for “wilfully rendering dangerous property, namely the motor vehicle ... that caused actual danger to the life of (the male victim.)”
One set of charges from February 2019 alleges Riopelle entered the home and “wilfully destroyed” property belonging to the man, including a coffee much, during the alleged assault.
Another charge from April 2019 alleges Riopelle once again unlawfully entered the home “with intent to commit an indictable offence.”
The allegations have not been tested in court.
Riopelle is also charged with various harassment offences in the same 18-month span, with the charge sheet naming the same male complainant, along with an adult female complainant.
Riopelle is charge with harassing the woman by “repeatedly communicating” with her, either directly or indirectly, and causing the woman to “reasonably fear for her personal safety.”
Riopelle is also charged with engaging in threatening conduct directed at the woman in charges that span from October 2018 to May 2019.
She is also charged with “wilfully interfering with (the male victim’s) lawful use and enjoyment of property” between January 2018 and May 2019.
The male complainant was harassed during that same span, according to the charges, when Riopelle allegedly “engaged in besetting or watching a place where that person happened to be, and caused (the male victim) to reasonably fear for his personal safety.”
A hearing for the matter is scheduled for next August.
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