Court File and Parties

COURT FILE NO.: CV-22-88865 and CV-22-89405 DATE: 18/07/2023

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ROBIN YATES Plaintiff/Defendant by Counterclaim/Moving Party – and – IRON HORSE CORPORATION and ROBIN ST. MARTIN Defendants/Plaintiffs by Counterclaim/Responding Parties

AND BETWEEN:

IRON HORSE CORPORATION and ROBIN ST. MARTIN Plaintiffs/Responding Parties

• and – LARRY YATES AND ROBIN YATES Defendants/Moving Parties

Counsel: Alyssa Tomkins and Charles Daoust for Robin Yates Christopher Morris and Sunny Cohen for Iron Horse Corporation and Robin St. Martin

HEARD: March 10, 2023, additional written submissions received March 24, 2023

Decision on Anti-SLAPP Motion

Justice Sally Gomery:

[1] This is an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Robin Yates and Larry Yates seek the dismissal of two proceedings: a counterclaim by Iron Horse Corporation and Robin St. Martin in response to Ms. Yates’ action in CV-22-88865 (the “Yates Action”), and an action by Iron Horse Corporation and Mr. St. Martin against the Yates in CV-22-89405 (the “St. Martin Action”).

Overview

[2] In October 2020, the CBC published an online article headlined: “Head of private security firm pleads guilty to submitting forged $25K promissory note to court”. It concerned a criminal prosecution against Mr. St. Martin for criminal harassment, obstruction of justice, and forgery. The case resolved when he pleaded guilty to one of the charges and the Crown withdrew the remaining three. The prosecution was based on police complaints by Ms. Yates, who had worked for Mr. St. Martin and then acquired a painting company from him. In an interview quoted in the CBC article, Ms. Yates expressed disappointment that the Crown had dropped three of four charges against Mr. St. Martin and that he had received a conditional discharge. She described how Mr. St. Martin had forged a promissory note and a fake lawyer’s letter, and how he sent her derogatory and threatening emails after they got into a contract dispute. She also expressed the belief that Mr. St. Martin was responsible for posting an advertisement with her picture and phone number on websites associated with prostitution, following which she received hundreds of sexually explicit texts and phone calls.

[3] Ms. Yates posted hyperlinks to the CBC article on two social media sites, along with comments about its contents. She also posted an anonymous, unfavorable review of the working conditions at Iron Horse on another site, stating that Mr. St. Martin had bragged about retaliatory measures he had taken against employees, including unfounded legal claims against them.

[4] More than a year passed. In March 2022, Ms. Yates began the Yates Action. She claims over two million dollars in damages from Mr. St. Martin and Iron Horse. She alleges, among other things, that Mr. St. Martin harassed and sexually harassed her while she worked for him and during their contract dispute. She says that Iron Horse is vicariously liable for his actions and breached its fiduciary duty towards her.

[5] Mr. St. Martin and Iron Horse defended to the claim and issued a counterclaim in defamation against Ms. Yates based on the CBC article, her online comments, and her communications to the police. They also started a second action, the St. Martin Action, against both Ms. Yates and her father, Larry Yates. In the Action, they claim damages for malicious prosecution and defamation based on the Yates’ communications with the police and others, the CBC article, and a message on Mr. Yates’ twitter feed implying that Mr. St. Martin is a harasser.

[6] Section 137.1 CJA permits a court, on an anti-SLAPP motion, to dismiss a lawsuit if allowing it to continue would inhibit expression relating to matters of public interest and if the public interest in protecting such expression outweighs the interest in allowing the lawsuit to proceed. In this motion, the Yates contend that their statements about the respondents relate to matters of public importance, that the respondents’ counterclaim and action have little or no merit, and that their primary purpose is to punish the Yates for their comments about Mr. St. Martin and Iron Horse and to inhibit others from such expression.

[7] Mr. St. Martin and Iron Horse contend that their claims against the Yates have substantial merit and that the defences to them are invalid. They argue that the comments do not relate to matters of public interest, but rather to a private dispute with Ms. Yates. They contend that they have suffered serious reputational and financial losses due to the Yates’ defamation, and from criminal prosecution and regulatory investigations based on incomplete or false information furnished by the Yates. They argue that the public interest favours the dismissal of this motion.

[8] For reasons more fully set out in this decision, the motion is granted in part, and the St. Martin Action is dismissed.

[9] The record includes emails sent by Mr. St. Martin to Ms. Yates that could fairly be characterized as harassing; admissions by him that he sent the emails and that he forged documents; and a court record indicating that he obtained a conditional sentence because the judge was concerned about the potential ramifications to Iron Horse’s 1800 employees if Mr. St. Martin were convicted. I find that the Yates’ expression relates to matters of public interest, that is, gendered harassment of a young woman with limited means by an older, powerful man, and the appropriateness of the 2020 plea bargain and Mr. St. Martin’s continued licensure as a private investigator and the head of a security and investigations firm.

[10] Based on the record, the St. Martin Action has little or no merit. I agree that the respondents’ primary purpose in bringing it seems to be to expose Mr. Yates to defence costs and the risks of a multimillion dollar damages award despite his peripheral involvement in the parties’ history. I conclude that the public interest in protecting individuals’ rights to make complaints to and communicate freely with the police, the media, the government, and regulatory authorities outweighs the respondents’ interests in pursuing the Action.

[11] I find that the defamation claim in the Yates Action could realistically succeed in part. The record currently before me does not allow me to assess the merit of some of the defenses raised in respect to some of Ms. Yates’ impugned statements. While I find that the respondents’ purpose in bringing the counterclaim is at least partially strategic, dismissing it would not meaningfully narrow the scope of the litigation. I conclude, in the circumstances, that Mr. St. Martin and Iron Horse’s interests in pursuing the counterclaim outweigh competing public interests.

Events Giving Rise to the Litigation at Issue

[12] As is typical on anti-SLAPP motions, the parties have filed an extensive record. The basic chronology of events is not in dispute, however, and some key facts have been admitted. I will identify contentious facts where necessary. Any findings or inferences I make with respect to these facts in the context of this motion are not binding for other purposes than this motion.

The Parties’ Relationship and the Sale of Capital City Painters to Robin Yates’ Company

[13] Mr. St. Martin owns and operates Iron Horse Corporation, a successful Ottawa security and investigations company. In July 2015, while in her mid-twenties, Ms. Yates began working as a sales representative for another business owned and operated by Mr. St. Martin, 7692455 Canada Inc. (“Capital City Painters”). Capital City Painters operated from the same offices as Iron Horse. The parties disagree as to whether Ms. Yates was technically employed by Iron Horse or by Capital City Painters. She received her salary from Capital City Painters but a record of employment from Iron Horse. Irrespective of who hired her, Mr. St. Martin admits that he was Ms. Yates’ boss and that there was a significant power imbalance between them.

[14] While she was working for him, Mr. St. Martin sent Ms. Yates text messages in which he said he loved her, that she should not be ashamed of her love for him, and that she was on a list of girls that he wanted to date. In one text, he asked her if he could take her bra off while he was kissing her. He admits that he sent her these messages but says that, read in the proper context, they merely represented the friendly and informal tenor of their relationship in 2016 and early 2017. Ms. Yates contends that she played along with the messages because she feared what Mr. St. Martin might do if she did not. She alleges that he fired another employee for tracking snow into the office and had bragged about starting baseless or exaggerated lawsuits against former employees and customers.

[15] On November 29, 2016, Mr. St. Martin and Ms. Yates signed an asset purchase agreement selling Capital City Painters to 2547510 Ontario Inc., a numbered company that Ms. Yates incorporated for that purpose (“254 Ontario”). As Mr. St. Martin has since admitted, Ms. Yates did not sign a separate personal guarantee. The date of transfer was January 1st, 2017. The price was $75,000, payable in equal monthly installments of $3,305 for 24 months beginning January 1st, 2017.

[16] After the sale closed on January 1st, 2017, Ms. Yates ceased to be employed by either Iron Horse or Capital City Painters but continued to work from Iron Horse’s premises.

[17] 254 Ontario failed to make the first payments owed under the asset purchase agreement. The company had cash flow issues, according to Ms. Yates. In April 2017, Mr. St. Martin sent a demand letter to a Capital City Painters’ customer who owed the company money. The letter threatened to sue the customer for $300,000 and to register a construction lien on his house unless he paid $4,000 owed within five days. The letterhead represented that it was sent from “The Legal Offices of St. Martin and Associates” and it was signed by “R.A. St. Martin, Senior Litigator, St. Martin and Associates”. Mr. St. Martin is not a lawyer and the law firm identified on the letterhead does not exist. In his affidavit on this motion, Mr. St. Martin admits that he sent this letter pretending to be a senior litigator but has produced a message that Ms. Yates sent to him thanking him for preparing the letter and asking him to send it.

The Deterioration of the Relationship Between Mr. St. Martin and Ms. Yates in 2017

[18] 254 Ontario had still not made it all payments owed under the share purchase agreement as of mid-2017. On July 7, 2017, Mr. St. Martin sent an email to Ms. Yates asking her to pay the outstanding arrears of $12,500 and suggesting that she might wish to obtain a loan so she could pay the entire purchase price at once. She responded on July 9 that she did not want to get a loan and that she believed that he had misrepresented Capital City Painters’ revenues. It was at this point that the relationship appears to have broken down irrevocably.

[19] On July 10, 2017, Mr. St. Martin sent a series of emails to Ms. Yates accusing her of stealing from him and of destroying Capital City Painters’ business. He called her a scam artist, a bully and a monster and said he would not hesitate to “make an example” out of her. He served her with an eviction notice from the Iron Horse premises and threatened to have her prosecuted criminally if she came on the property without his permission. He accused her of misappropriating cash payments from customers while she worked for him and threatened to charge her with theft. He also threatened to sue her.

[20] On July 16, 2017, Mr. St. Martin sent Ms. Yates another lengthy email. He reproached her for failing to make the July payment on the asset purchase agreement, instead “going to Toronto to engage in a weekend of drinking and partying, followed by a weekend of drinking at Hope Beach Volleyball”. He repeated that she could no longer use the Iron Horse premises for Capital City Painters’ business and that he would have her arrested if she came onto the property. He advised that she could attend at the premises to pick up the company’s property on July 18, 2017 at 3:00 p.m. He proposed mediation or arbitration.

[21] On July 18, 2017, Ms. Yates attended at the Iron Horse premises as proposed. When she remained parked outside the office after picking up Capital City Painters’ property, Mr. St. Martin called the police. Ms. Yates left before the police arrived. Later that day, Mr. St. Martin sent her an email accusing her of threatening behavior, serving her with a trespass notice, and telling her that she would have to pay the cost of having the locks changed on Iron Horse’s building.

[22] In other emails that Mr. St. Martin sent to Ms. Yates in July and August 2017, he repeatedly told her that she was personally liable for the money owed for the Capital City Painters sale, and that this debt would survive any corporate or personal bankruptcy. He disparaged her, describing her as “like a sequel to Dumb and Dumber” and a “complete fucked up failure and a thief” who hung around with “coke head hookers 24/7”. He said that he could garnishee her wages for the rest of her life, that he would be entitled to a piece of every asset she owned and that, as a result, they would have a “lifelong relationship”. In one email, he said that he might hire her back to work for him as he could use “a sturdy, hefty and ruggedly built workhorse” like her. He suggested that “if you cleaned yourself up a bit, hit the gym etc., you could probably make a few [pornos] yourself and pay off your debt to me in a timely manner. If you do go that route, send me the links, all the people you have fired in the past year would like to see it”.

[23] Ms. Yates sent Mr. St. Martin emails asking him to stop communicating with her on July 17, 19 and July 23, 2017. He did not stop.

[24] Mr. St. Martin referred to Ms. Yates’ father in some messages. He wrote that he might also be willing to hire Mr. Yates to do physical labour based on Mr. Yates’ physical appearance on YouTube videos and at his workplace, a hearing clinic, which Mr. St. Martin said he had recently visited. He suggested that Mr. Yates might entertain other employees by singing as he worked.

[25] On July 23, 2017, Ms. Yates says she started receiving hundreds of disturbing, sexually explicit phone calls and text messages, many of which contained obscene photographs of male genitalia. The callers and senders were not identified. She discovered that someone had posted advertisements, ostensibly in her name, on websites that feature ads for escort and sexual services. The advertisements included pictures of Ms. Yates, taken from her social media accounts, with the message that she was “looking for someone to fill my day and me up” and that she was “horny and available” and “nothing is off limits”. The message invited readers to “text me a dick pic without your face .... and I will reply immediately” and ended with Ms. Yates’ personal phone number.

[26] Ms. Yates contacted the websites and the advertisements were removed the next day. Over three weeks later, she received a sexually explicit text that mentioned her first name and the street where she lived. Another message from the same telephone number mentioned her father. Because these messages included information that was not on the sex advertisements, and because they were sent during the same period that Mr. St. Martin suggested she make pornographic films, Ms. Yates believes that Mr. St. Martin is responsible for the advertisements and the sexually explicit texts and calls she received. Mr. St. Martin denies this.

[27] On July 25, 2017, Mr. St. Martin sent a message to Ms. Yates that attached an email that she had purportedly written to him two days earlier. In this email, Ms. Yates taunted Mr. St. Martin about having cheated him by not paying the purchase price installments for Capital City Painters, and about embezzling money when she worked for him. She insinuated that if he did not “back off” trying to collect on the Capital City Painters debt, he would suffer physical harm as she knew where he lived. Mr. St. Martin repeatedly sent this email to Ms. Yates, in one instance threatening to report her to the police based on it. He now admits that he, not Ms. Yates, wrote the email. He says that he fabricated and sent it to her during a period that he was “livid” that she had not paid her debt obligations under the asset purchase agreement.

[28] In September 2017, after Ms. Yates applied for a serving job at a local Keg restaurant, she received a text from Mr. St. Martin saying “Hey sweet pea, can you put a table aside from me in your section. Some of the boys want to come in and say hello. We’ll pop in for your next shift. Thanks, xo.” Mr. St. Martin admits that he sent this text but denies that he was tracking Ms. Yates’ movements or threatening her. He says that he heard about Ms. Yates’ job application through a friend.

[29] Mr. St. Martin has not denied sending the emails and texts produced by Ms. Yates on the motion but argues that they should be considered in the larger context of the parties’ relationship.

[30] Ms. Yates first reported the emails received from Mr. St. Martin to Ottawa Police Services (OPS) in early July 2017. She provided the police with additional information that summer but this did not result in any charges against Mr. St. Martin at the time. Based on a report written later in response to a complaint by Mr. St. Martin about the police investigation, OPS viewed the situation as a civil dispute and thought that was insufficient evidence for a criminal prosecution. The police closed their initial investigation file in early November 2017.

Larry Yates’ Communications Regarding His Daughter

[31] On August 10, 2017, Larry Yates sent an email to the OPS chief of police at the time, Charles Bordeleau, asking for his assistance with the investigation of Ms. Yates’ complaints. This email stated that Mr. St. Martin had threatened and defamed Ms. Yates. Mr. Yates described Mr. St. Martin as a “merciless and shameless liar” who engaged in “thug-like behaviour and illegal intimidation”.

[32] Mr. Yates sent a further email to the investigating officer on August 14, 2017. He described Mr. St. Martin as a “devious, merciless, opportunistic liar who has a strategy to extort, intimidate, harass, incriminate and defame” his daughter. He asked the investigator for help.

[33] On October 25, 2017, Mr. Yates sent another email to Chief of Police Bordeleau asking for action be taken “regarding all the harassment and malice inflicted on” his daughter by Mr. St. Martin. He said that “it’s safe to assume that nothing whatsoever has discouraged him from his ways”. He asked the investigator to provide Ms. Yates with a status report and said that Mr. St. Martin “needs to feel to [sic] attention of your force to his goings on. He must be stopped.”

Mr. St. Martin’s Small Claims Court Action Against Ms. Yates and the Criminal Charges Against Him

[34] On December 18, 2017, Mr. St. Martin served Ms. Yates with a Small Claims Court action (file 17-SC-147852). In the action, he claimed that she personally owed him the balance of payment for the Capital City Painters purchased based on a $25,000 promissory note that she had allegedly signed. This promissory note was attached to the statement of claim. Ms. Yates’ company, 254 Ontario, was not named in the action.

[35] On December 20, 2017, Ms. Yates applied for a restraining order against Mr. St. Martin. On January 11, 12, and 18, 2018, she wrote emails to the Crown Attorney’s office. In addition to alleging that Mr. St. Martin had sent her threatening and harassing communications in 2017, that he had forged documents, and had caused her to receive lewd messages, she alleged that he sexually harassed her while she worked for him and that he had told her about illegal acts he had committed against third parties. Larry Yates also wrote to the Crown Attorney on January 16, 2018. He confirmed that Ms. Yates had told him about harassment and threatening behaviour by Mr. St. Martin in 2016, as well as some dubious money dealings, when she was working for him. He thanked the Crown Attorney for the assistance she was giving to his daughter.

[36] In her reply affidavit, Ms. Yates says that these communications to the Crown Attorney’s office related to her application for a restraining order. Her evidence on this point is consistent with a further email on May 31, 2018 sent to the Crown Attorney in anticipation of a hearing set for June 4, 2018.

[37] On February 12, 2018, Ms. Yates reported to OPS that the promissory note filed by Mr. St. Martin in the Small Claims Court action was a forgery. The police file was reopened.

[38] At a settlement conference with respect to the Small Claims Action on April 18, 2018, Ms. Yates advised that the police were investigating the promissory note. The Small Claims Court action was adjourned until the investigation and any resulting criminal charges were resolved. After the settlement conference, Mr. St. Martin sent Ms. Yates an offer to dismiss the action on a without costs basis if Ms. Yates abandoned her peace bond application. She refused this offer. The Small Claims Court action has still not been resolved.

[39] On July 5, 2018, Mr. St. Martin was charged with criminal harassment, two counts of forgery, and obstruction of justice. The forgery charges were based on Mr. St. Martin’s fabrication of the letter from “The Legal Offices of St. Martin and Associates” and the promissory note. The obstruction of justice charge was based on his filing of the promissory note in the Small Claims Court action. The criminal harassment charge was based on communications Mr. St. Martin sent to Ms. Yates between July 1st and September 30, 2017.

[40] Ms. Yates abandoned her peace bond application after the criminal charges were laid. There is no direct evidence of any communications between Mr. St. Martin and the Yates in 2018 and 2019, although Ms. Yates reported her suspicion to police that he may have attempted to contact her through social media, using false names.

[41] On January 13, 2020, Mr. St. Martin’s lawyer pleaded guilty to uttering a forged document in connection with the promissory note. The three other charges were withdrawn. The Crown Attorney and Mr. St. Martin filed an agreed statement of facts. Ms. Yates only learned about the outcome of the criminal case after the fact. Mr. St. Martin alleges, however, that she had been told some time earlier that the Crown would not pursue the criminal harassment charge because it did not think it would result in a conviction.

[42] After hearing sentencing submissions, an Ontario Court justice gave Mr. St. Martin a conditional discharge on serving 12 months of probation. During this time, Mr. St. Martin was prohibited from contacting Ms. Yates by any means or from coming within 200 meters of her home or workplace. He was also required to perform 60 hours of community service. In his sentencing decision, Justice Boxall accepted the defence submission that this was an appropriate resolution because, if Mr. St. Martin had a criminal record, he could lose his private investigator’s license and could no longer operate Iron Horse, potentially imperiling the jobs of its 1800 employees.

[43] In his affidavit on this motion, Mr. St. Martin admits that he fabricated the promissory note “when [he] was angry and frustrated due to Ms. Yates’ failure to meet her financial obligations to him”. He characterizes the forgery as “a foolish decision made in a cloud of anger and uncertainty” and says he regrets his actions.

The CBC Article and Its Reproduction by Ms. Yates

[44] On October 13, 2020, CBC published an article about Mr. St. Martin on its website with the headline: “Head of private security firm pleads guilty to submitting forged $25K promissory note to court”. The article, written by Jennifer Chevalier, set out the history of the relationship between Mr. St. Martin and Ms. Yates, the sale of Capital City Painters, the admissions made by Mr. St. Martin in the agreed statement of facts filed with the Ontario Court when he pleaded guilty to uttering a forgery, and the judge’s reasons for issuing a suspended sentence. According to the article, Mr. St. Martin admitted in the agreed statement of facts filed in the Ontario Court that he had posed as a senior litigator in a demand letter to one of Capital City Painters’ clients and that he had forged the promissory note. Ms. Chevalier also quoted from “a string of abusive emails” that Ms. Yates had shared with her.

[45] Ms. Chevalier wrote that Ms. Yates and Mr. Yates were interviewed for the story. Mr. St. Martin declined to be interviewed but sent an email to Ms. Chevalier, excerpts of which were quoted in the article.

[46] In comments reproduced or referenced in the CBC article, Ms. Yates expressed disappointment and frustration that Mr. St. Martin received a conditional discharge and that the Crown had dropped three of the four charges. She explained why she believed that Mr. St. Martin was responsible for the sexually explicit texts and calls she received in July and August 2017. The article noted that Ms. Yates had no direct evidence to support this belief. Mr. Yates told Ms. Chevalier that he wrote to the police to ask them to investigate his daughter’s situation because she was distraught and he did not see how he could help her.

[47] In his written comments reproduced in the CBC article, Mr. St. Martin admitted that he was “responsible for the words I used” and said he was “embarrassed and apologize for lashing out in an inappropriate way”, which he described as a “momentary lapse in judgment”. He accused Ms. Yates, however, of making “many outlandish and completely unsubstantiated harassment complaints”, which led him to plead guilty to the forgery charge so he could move on with his life.

[48] Ms. Yates posted a hyperlink to the CBC article on her LinkedIn profile with a comment that began: “It’s hard to share a story like this”. She also posted a hyperlink to the article on Reddit, a social media site, along with comments under her username “binbin1082”. Other people posted comments in response, to which Ms. Yates replied in turn.

[49] Ms. Yates also posted a review of Iron Horse on Glass Door, an internet site where users can search advertisements for jobs and post comments about employers. In her review, Ms. Yates identified herself as a “Former Employee – Vice President” of Iron Horse. She described how Mr. St. Martin had bragged about legal actions against former employees and had fired another employee for a trivial offence.

The Lawsuits in the Superior Court

[50] On March 23, 2022, Ms. Yates began the Yates Action against Iron Horse and Mr. St. Martin. She seeks over two million dollars in damages for harassment, fraud, and violations of the Human Rights Code. On April 25, 2022, Iron Horse and Mr. St. Martin filed a statement of defence and counterclaim seeking more than two million dollars in damages from Ms. Yates. I will review these pleadings in greater detail below.

[51] On June 3, 2022, Iron Horse and Mr. St. Martin commenced the St. Martin Action against Larry and Robin Yates. They seek over two million dollars in damages in this lawsuit. I will again review the pleadings in detail below.

[52] The Yates served this motion in August 2022. It was originally set to be heard in December 2022 but was adjourned to March 2023 for administrative reasons.

The Test Under S. 137.1

[53] Section 137.1 of the CJA allows a defendant to a proceeding to bring a motion to dismiss the proceeding on the basis that it will unduly eliminate or limit legitimate criticism about a matter of public interest. The purpose of so-called anti-SLAPP motions is stated at s. 137.1(1):

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.

[54] Doherty J.A. described the rationale for anti-SLAPP legislation in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685 (“Pointes Protection ONCA”), at para. 2:

From time to time, those who are the target of criticism resort to litigation, not to vindicate any genuine wrong done to them, but to silence, intimidate and punish those who have spoken out. Litigation can be a potent weapon in the hands of the rich and powerful. The financial and personal costs associated with defending a lawsuit, particularly one brought by a deep-pocketed plaintiff determined to maximize the costs incurred in defending the litigation, can deter even the most committed and outspoken critic.

[55] An anti-SLAPP motion is intended to “prevent others from silencing persons who are speaking on matters that have significance beyond themselves”: Grist v. TruGrp Inc., 2021 ONCA 309, at para. 17.

[56] Subsections 137.1(3) and (4) sets out the criteria for granting an anti-SLAPP motion:

(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.

(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.

[57] Argument on an anti-SLAPP motion proceeds in two stages.

[58] On the first stage, the moving party must persuade the judge that the lawsuit “arises from an expression made by the person that relates to a matter of public interest”: s. 137.1(3) If the moving party cannot meet this threshold, the motion is dismissed.

[59] If the moving party meets this threshold, the analysis moves to the second stage at s. 137.1(4)(b). The onus shifts to the respondent to persuade the motion judge that there are grounds to conclude that:

(i) the lawsuit has substantial merit; (ii) the defendant has no valid defence; and (iii) the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

[60] The motion will be granted if the respondent does not carry the day on all three parts of the second stage of the test. It follows that, if the motion judge finds in the moving party’s favour on any one of the three parts of the analysis under s. 137.1(4)(b), there is no need to consider the other parts of the test.

[61] A decision on an anti-SLAPP motion is “unequivocally not a determinative adjudication of the merits of a claim”: Bent v. Platnick, 2020 SCC 23, at para. 4. Section 137.1 does not provide another form of summary judgment: Pointes Protection ONCA, at para. 73; 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 (“Pointes Protection SCC”), at para. 38. Its purpose is instead to assess whether, for the sake of protecting debate on matters of public interest, a hearing on the merits of some cases ought never to take place.

[62] That is the why the balancing exercise in the final stage has been described as the crux or core of the s. 137.1 analysis: Pointes Protection SCC, at para. 18. As directed by Côté J. in that case, the motion judge should assess “what is really going on in the particular case before them”, as s. 137.1(4)(b) “effectively allows motion judges to assess how allowing individuals or organizations to vindicate their rights through a lawsuit — a fundamental value in its own right in a democracy — affects, in turn, freedom of expression and its corresponding influence on public discourse and participation in a pluralistic democracy”: Pointes Protection, at para. 81.

[63] In its recent decision in Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, the Ontario Court of Appeal lamented that s. 137.1, meant to weed out strategic litigation, has given rise to a plethora of time-consuming and expensive anti-SLAPP motions. The Court emphasized that an anti-SLAPP motion is a “screening procedure” as opposed to a “trial in a box” and that the weighing exercise is not a “technical granular process” but a step back to consider what interests are actually at play: Park Lawn, at para. 38. This led the Court, at para. 39, to issue the following guideline:

[R]ecognizing that an anti-SLAPP motion is meant to be efficient and economical, I would suggest that, as a guideline, the costs of such a motion should not generally exceed $50,000 on a full indemnity basis, although there will be exceptions and motion judges always have the power to award less, more or nothing as they see fit in the circumstances of each case. If the parties and the motion judge focus on the purposes that animate the anti-SLAPP provision, the inquiry will not generally be a difficult one for a motion judge. Indeed, typically the conclusion should be obvious and one readily reached by a motion judge.

Application of the S. 137.1 Analysis to the Counterclaim in the Yates Action

[64] Although the parties took a different approach, I will apply the s. 137.1 analysis to each of the two proceedings in turn, starting with the Yates Action.

Have the Moving Parties Established That the Proceedings Arise From an Expression That Relates to a Matter of Public Interest?

[65] On the first stage of the motion, the moving party must establish that the proceedings at issue arise “from an expression made by the person that relates to a matter of public interest”: s. 137.1(3). The burden at this stage of the s. 137.1 test is not onerous. “Public interest”, which is not defined in the CJA, should be interpreted in generous and expansive fashion. The court should consider whether “some segment of the community would have a genuine interest in receiving information on the subject… .”: Pointes Protection SCC, at paras. 28 to 30. To qualify as an expression relating to a matter of public interest, a 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 v. Torstar, 2009 SCC 61, at para. 105.

The Pleadings in the Yates Action

[66] In the Yates Action, Ms. Yates claims general, punitive, and aggravated damages from Iron Horse and Mr. St. Martin. Ms. Yates alleges that Mr. St. Martin sexually harassed her when she worked for him. She feared him because he told her that he had physically injured or assaulted other employees who had crossed him. Ms. Yates alleges that Mr. St. Martin continued to harass her after she stopped working for him, by posting fake ads with her name and image soliciting sexual encounters; by threatening her and her father with physical violence; by sending forged emails; and by filing a forged promissory note to support his Small Claims Court action against her personally. Ms. Yates asserts various causes of action. She states that Mr. St. Martin’s actions have caused to suffer permanent psychological impairments, including PTSD, depression, and anxiety. She claims that Iron Horse is vicariously liable for Mr. St. Martin’s acts and that it breached its fiduciary duty towards her.

[67] In their statement of defence, Mr. St. Martin and Iron Horse deny any sexual harassment of Ms. Yates, or any intimidating behaviour or threats. They allege that it was Ms. Yates who harassed Mr. St. Martin by filing false police complaints against him and instigating a CRA audit of Iron Horse. They assert that Mr. St. Martin pleaded guilty to the forgery charge against him solely to avoid the costs of a criminal trial and deny that he ever altered or created any documents. They also deny that they caused Ms. Yates’ alleged injuries and say that her action is time-barred.

[68] In their counterclaim to the Yates Action, Iron Horse and Mr. St. Martin claim general and special damages for defamation in the amount of $1,500,000, and aggravated and punitive damages of $1,000,000. They claim that Ms. Yates made untrue, disparaging and defamatory statements against them in:

• the October 2020 CBC article;
• comments that Ms. Yates posted on her LinkedIn profile online in conjunction with reposting the CBC article;
• comments that Ms. Yates posted anonymously on Reddit in October 2020;
• comments that Ms. Yates posted anonymously on Iron Horse’s entry on www.glassdoor.com;
• Complaints filed with the Ottawa Police against Mr. St. Martin in November 2017; and
• complaints filed with the CRA against Iron Horse in December 2017.

[69] The pleading asserts, at para. 44, that Ms. Yates made the following statements in the CBC article:

• That St. Martin forged a document in the Small Claims Court action;
• That St. Martin sent Ms. Yates abusive emails;
• That St. Martin had fraudulently assumed the identity of a senior litigator;
• That St. Martin had harassed and sexually harassed Ms. Yates; and
• That St. Martin published sexual advertisements involving Ms. Yates online.

[70] The specific statements that Ms. Yates allegedly posted on LinkedIn were that:

• “The owner of Iron Horse Security in Ottawa sued [her] with a forged document”;
• “He served me with the fraudulent lawsuit 2 weeks before Christmas following a montage of relentless harassment”;
• “He was able to shrink 4 charges to 1 through plea bargaining”;
• “I received email after email of ranting psychotic communications that St. Martin sent over the course of months”; and
• “He was tracking my movements”.

[71] The specific defamatory and untrue statements that Ms. Yates allegedly made on Reddit were that:

• “Those employees [of Iron Horse] will be so much better off when their SIN numbers, DOB and parents information are not in the hands of this psycho”;
• “It would be easy for this man to sell the company if he had any shred of decency … Unless it’s in financial trouble. Which might explain the desperate attempt to get money suing and frauding”;
• “Not to mention Private Investigations are involved in court cases. Wonder how many times evidence may have been fabricated before”;
• “Private investigators and security guards alike are often relied upon for court evidence, and the guy at the top will use fake documents to get money. The guy is 50 he is not going to change, he will be more careful”;
• “Imagine this guy losing someone access to their children based on forged documents or evidence. There is good reason criminals shouldn’t be put in that position. I wonder if he’ll just be more careful now, continue with his crimes but ensure there is less evidence in the future”; and
• “A large number of innocent employees = a large number of potential victims left under his authority, completely vulnerable to him”.

[72] On the Iron Horse page on the Glass Door website, the respondents allege that Ms. Yates made the following false and defamatory statements:

• “The CEO bragged about lawsuits against two former employees and how the lawsuits were made long simply to ensure they were expensive to defend. He would talk about wanting to destroy their lives”;
• “Fired an employee for trekking in salt with his boots during the winter and sent an email to everyone in the office about it”; and
• “Not a healthy work environment”.

[73] The counterclaim does not contain allegations about the specific statements that Ms. Yates allegedly made in her complaints to the Ottawa Police Services. It simply alleges that she communicated that St. Martin harassed and sexually harassed her, “among other things”. The counterclaim likewise does not contain any allegations about the nature of the untrue and defamatory complaint that Ms. Yates allegedly made to the CRA against Iron Horse.

[74] In her amended defence to the counterclaim, Ms. Yates admits making comments to the CBC, on her LinkedIn profile, and on Reddit. She admits to making some of the statements on the Glass Door website which the respondents attribute to her. She also admits to filing police complaints against Mr. St. Martin and participating in an interview with the CBC. She denies disclosing any information about Iron Horse to the CRA. She denies that any statements she made about Mr. St. Martin were defamatory, and raises defences of justification, fair comment, qualified privilege, and responsible communication. She also contends that the claims in the counterclaim are time barred. Finally, she alleges that Iron Horse and Mr. St. Martin have suffered no compensable damages or that such damages are nominal.

Does the Counterclaim in the Yates Action Arise From an Expression That Relates to a Matter of Public Interest?

[75] The counterclaim unquestionably arises from comments and communications that Robin Yates made with respect to Mr. St. Martin and Iron Horse. The question is whether these comments and communications relate to a matter of public interest. Having reviewed the impugned comments in the context in which they were made, I find that they do.

[76] I will first deal with the statements attributed to Ms. Yates in the CBC article, her LinkedIn page, and on Reddit.

[77] Ms. Yates contends that it is a matter of public interest to “denounce and speak out against the predatory, abusive and criminal behaviour of powerful or prominent persons in our society”, particularly when they abuse women. As a result, the communications at issue transcend the personal relationship between the parties and are a matter of public interest. She relies on Smith v. Nagy, 2021 ONSC 4265; Marcellin v. LPS, 2022 ONSC 5886; Mazhar v. Farooqi, 2020 ONSC 3490, aff’d 2021 ONCA 355; Bullard v. Rogers Media Inc., 2020 ONSC 3084; and Lyncaster v. Metro Vancouver Kink Society, 2019 BCSC 2207.

[78] Iron Horse and Mr. St. Martin concede that the issue of gender-based harassment is a legitimate area for public concern. They point out, however, that not every allegation made by a woman against a former partner or every allegation of harassment or sexual harassment is a matter of public interest.

[79] The Ontario Court of Appeal recently considered when expression relating to sexual harassment and workplace harassment claims is of public interest under the s. 137.1 analysis. The plaintiff in Safavi-Naini v. Rubin Thomlinson LLP, 2023 ONCA 86 was a medical resident at a faculty of medicine in Northern Ontario known as NOSM. After she accused two physicians at NOSM of workplace and sexual harassment, the faculty hired the defendant law firm to investigation her allegations. The investigator concluded that Dr. Safavi-Naini’s accusations were not made out. In executive summaries of her final report, the investigator expressed the view that Dr. Safavi-Naini was not a credible or reliable witness. The summaries were transmitted to NOSM, its lawyer, and the two physicians named in Dr. Safavi-Naini’s harassment complaint. They were also later filed by one of the physicians as part of their defence to a human rights complaint brought by Dr. Safavi-Naini.

[80] In her lawsuit, Dr. Safavi-Naini claimed that the law firm had defamed her. On a s. 137.1 motion, a judge concluded that the statements related to a matter of public interest. The Court of Appeal upheld this determination as well as the dismissal of the lawsuit. At paras. 19 to 21 of its decision, the Court cautioned that not every expression relating to sexual and workplace harassment is a matter of public interest, but explained why the expression here did:

The public has significant concern over sexual harassment and workplace harassment and, generally, has an interest in investigations into these issues.

However, the mere fact that an expression relates to sexual and workplace harassment, on its own, will often be insufficient to bring it within the scope of public interest. If this were not the case, the anti-SLAPP framework would apply — in most cases — to defamation proceedings stemming from #MeToo workplace allegations.

Instead, a contextual approach is required to determine what the expression at issue is really about … . On the facts of this case, the Executive Summaries engaged the public interest, in part because of the nature of NOSM as an educational institution, the media attention garnered, and the public safety concerns arising from the allegations… . [Internal citation omitted.]

[81] The CBC article focuses on the justice system’s response to gendered harassment as opposed to the harassment itself. The thrust of the piece is that Mr. St. Martin, the owner of a successful security company in Ottawa, avoided a conviction on a forgery charge despite a guilty plea, and avoided a trial on other charges, including a criminal harassment charge, despite evidence supporting them. The statements attributed to Ms. Yates are made in this context.

[82] The impugned statements on Reddit and LinkedIn were made in conjunction with Ms. Yates’ posting of a hyperlink of the CBC article. They again concern, to a large extent, the outcome of the criminal case against Mr. St. Martin. The comments posted by other individuals in response to the article by and large focus on this issue. On LinkedIn, Ms. Yates expands on her account of how Mr. St. Martin allegedly harassed her and how he was able to negotiate a plea bargain that resulted in three of the four criminal charges against him being dropped. The Reddit comments allegedly made by Ms. Yates question the fitness of the conditional discharge given Mr. St. Martin’s history as an employer and his access to employee information.

[83] The functioning of the justice system and the perceived fairness of court processes and judicial decisions are inherently subjects of public interest. They should and do engage public debate. The outcome of the criminal prosecution against Mr. St. Martin is one of particular public interest given his position as the CEO of a security and investigations firm, and the connection between this position and the outcome of the criminal case against him.

[84] Ms. Yates’ allegations that Mr. St. Martin harassed her also related to a matter of public interest in the context of this case. In the emails that Mr. St. Martin sent to her in 2017, he made comments about her body and suggested she make a porn film to pay off the debt owned by her company. According to Ms. Yates, he also caused her to be besieged by pornographic calls and texts. Although not all gendered harassment is a matter of public interest, I find it to be so here because the alleged perpetrator is licensed as a private investigator and controls a large and successful security and investigation company. His potential abuse of his power and resources could reasonably give rise to public safety concerns. CBC’s decision to publish Ms. Yates’ harassment allegations illustrate the public interest in her account.

[85] Iron Horse and Mr. St. Martin contend that Ms. Yates’ harassment allegations cannot be a matter of public interest because the Crown dropped the criminal harassment charge. They characterize her allegations as “bare assertions” and argue that “[b]aseless and unsubstantiated allegations of harassment and/or sexual harassment undermine the criminal justice system and the ability of actual victims to denounce criminal behaviour and speak out against their abusers”.

[86] It is reasonable to infer that the outcome of the criminal case against Mr. St. Martin was based on a plea deal. The Crown’s decision to withdraw the harassment charge does not necessarily imply that Ms. Yates’ allegations were assessed as unreliable or that she will be unable to prove them on a civil standard. I furthermore reject the respondents’ characterization of the evidence on the motion or its argument that Ms. Yates’ claims undermine the ability of other women to access the justice system.

[87] The review of Iron Horse that Ms. Yates posted on Glass Door differs from the other expression at issue in this case. In the posting, Iron Horse is described as a volatile and unhealthy place to work because its CEO engages in reprisals against employees, notably lawsuits and firings, to create a culture of fear. The CBC article is not mentioned, nor are any allegations that Mr. St. Martin harassed Ms. Yates either before or after she left the company.

[88] Ontario courts have reached different conclusions as to whether online comments recounting the writer’s experience with a company constitute expression relating to a matter of public interest. In Raymond J. Pilon Enterprises Ltd. v. Village Media Inc., 2019 ONCA 981, Tremblay J. held that a customer’s account of an incident of poor customer service at a Canadian Tire store in Timmins would be of interest to potential customers of the store. A judge came to the same conclusion in New Dermamed Inc. v. Sulaiman, 2019 ONCA 141, 144 O.R. (3d) 721, where the defendant had written webpage reviews about the quality of the laser resurfacing treatment she had received from the plaintiff. On the other hand, in Echelon Environmental Inc. v. Glassdoor Inc., 2022 ONCA 391, Dow J. held that an anonymous critical review on the appellant’s website about the plaintiff employer was not an expression relating to the public interest, but rather reflected a private dispute with no real impact on others.

[89] The Ontario Court of Appeal upheld each of the motion judges’ decision in these cases, on the basis that they involved mixed questions of fact and law and were entitled to deference in the absence of an extricable error of law or palpable and overriding errors of fact.

[90] Based on this caselaw, comments about an employer or services received from a seller of goods and services may or may not related to a matter of public interest, depending on the circumstances of the case.

[91] I find that Ms. Yates’ review of Iron Horse on Glass Door relates to a matter of public interest. The plaintiff in Echelon Environmental Inc. was described as a small company providing specialized services to a few customers. Iron Horse is a midsize company which, according to the CBC article, employed 1800 people in 2020. It offers a range of services to the public at large. These services, and those providing them, are regulated under the Private Investigators and Security Guards Act, RSO 1990, c P.25. Statements indicating that the CEO of the company had abused his authority would be relevant to members of the public interacting with Iron Horse, and to prospective employees of the company. This is borne out by the reporting on Mr. St. Martin’s criminal case by the CBC.

[92] Since I have found that the expression at issue in the counterclaim relates to matters of public interest, Ms. Yates has satisfied the first stage of the s. 137.1 test.

Have Iron Horse and St. Martin Shown That Their Counterclaim Has Substantial Merit?

[93] The Supreme Court has defined “substantial merit” as 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 Protection SCC, para. 49.

[94] To make out a successful claim of defamation, a plaintiff must establish that:

(a) The defendant made a defamatory statement, in the sense that the impugned words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (b) the words referred to the plaintiff; and (c) the words were communicated to at least one person other than the plaintiff.

[95] The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is one of strict liability: Grant v. Torstar, at para. 28.

[96] Ms. Yates concedes that the statements attributed to her in the counterclaim referred to Mr. St. Martin and Iron Horse and that they have a “defamatory overtone”. She argues, however, that she cannot be liable for any defamatory content in the CBC article, because she did not publish it or republish it. In their pleading, Mr. St. Martin and Iron Horse do not plead that Ms. Yates defamed them by talking to Ms. Chevalier, the author of the CBC article. They also acknowledge that it was the CBC that originally published the article on the CBC website. They nevertheless imply, at paragraph 82 of the counterclaim, that Ms. Yates is liable for the CBC article because she republished it on LinkedIn and Reddit. Ms. Yates admits that she posted a hyperlink to the article on LinkedIn and Reddit but denies that this constitutes republication.

[97] I find that Ms. Yates would likely be found to have republished the CBC article. In Crookes v. Newton, 2011 SCC 47, at p. 42, the Supreme Court held that simply referring to the existence or location of content by a hyperlink, without more, is not publication. Where, however, “a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content … that content [is] considered to be “published” by the hyperlinker”.

[98] In my view, through the comments Ms. Yates made alongside the hyperlinks, she endorsed and adopted the CBC article’s contents. She also repeated some statements attributed to her in the CBC article.

[99] I conclude that the respondents have shown that their counterclaim has substantial merit.

Have Iron Horse and St. Martin Shown That the Yates Have No Valid Defence?

[100] At this stage of the analysis, Iron Horse and St. Martin must show that there are grounds to conclude that Ms. Yates has no valid defence to their claim. In Côté J.’s words, there must be “a basis in the record and the law — taking into account the stage of litigation at which a s. 137.1 motion is brought — for finding that the underlying proceeding has substantial merit and that there is no valid defence”: Pointes Protection SCC, at para. 39. If I find that the defenses could realistically fail, then Iron Horse and St. Martin meet the onus on this part of the test: Pointes Protection SCC, at para. 60.

The Limitations Defence

[101] Ms. Yates asserts that the defamation claims in the counterclaim are time-barred. Mr. St. Martin has indirectly admitted that he knew about the CBC article when it was published in October 2020. In cross-examination, he testified that his account at BDC was put into the special risks category, making him ineligible to receive future BDC loans, “within days of the article”. I have not been directed to evidence of when he learned of the posts on LinkedIn, Reddit, and Glass Door.

[102] The first notice Ms. Yates had of the respondents’ claim in defamation was through service of their counterclaim. She argues that they were required to serve notice within 6 weeks of learning of the alleged libel pursuant to s. 5(1) of the Libel and Slander Act, RSO 1990, c L.12 (the “LSA”). The respondents were furthermore required to take legal action within three months after the libel came to their attention, contrary to s. 6 of the LSA. They instead waited twenty months after publication of the CBC article.

[103] This argument assumes that the CBC article as well as Ms. Yates’ postings on Reddit and LinkedIn fall within the LSA’s definition of a “broadcast”. The respondents contend that courts have consistently held that it is premature for a motion judge to determine this issue in the context of an anti-SLAPP motion. In support, they cite Kam v. CBC, 2021 ONSC 1304; John v. Ballingall, 2017 ONCA 579; Nanda v. McEwen, 2019 ONSC 125; Bangash v. Patel, 2021 ONSC 7620; and Marcellin v. LPS, at para. 72.

[104] Not all these decisions arise in the context of anti-SLAPP motions, and John v. Ballingall is inaccurately summarized at paragraph 78 of the respondents’ factum. These observations notwithstanding, I agree with the respondents that the law in this area is unsettled. I also find that I cannot make the necessary factual findings, on the record before me, to determine whether the CBC article and social media postings at issue in this case fall within the ambit of ss. 5(1) and 6 of the LSA, or when the respondents learned of the latter.

[105] I accordingly conclude the limitations defence could realistically fail.

The Defence of Justification, Fair Comment, and Qualified Privilege

[106] In the counterclaim, the respondents identify 19 allegedly defamatory and untrue statements made by Ms. Yates in the CBC article and on social media sites. Given the number of impugned statements and the repeated instruction by appellate courts that judges should not approach anti-SLAPP motions as though they were summary judgment motions, I will not review the merits of each of the defenses asserted with respect to each statement. I will instead simply explain why, in my view, the defenses asserted with respect to some of the statements could realistically fail.

[107] Ms. Yates relies on the justification defence and the fair comment defence with respect to her statement, reproduced in the CBC article, that Mr. St. Martin published online sexual advertisements in her name.

[108] If a court is satisfied that words communicated are defamatory, then they are presumed to be false. To succeed in a justification defence “a defendant must adduce evidence showing that the statement was substantially true”: Grant v. Torstar, at para. 33. With respect to the justification defence, a person sued for defamation will not be found liable if (1) the comment was made on a matter of public interest; (2) the comment was based on fact; (3) the comment, though it can include inferences of fact, is recognizable as comment; and (4) objectively speaking, a person could honestly express the opinion on proved facts: ss. 23 and 24, LSA; Grant v. Torstar, at para. 3. The defence will be rejected if the court finds that the defendant acted out of express malice in making the comment.

[109] On the current record, there is no direct evidence that Mr. St. Martin published sexual advertisements about Ms. Yates. She infers that he must have done so, given personal details in some of the texts she subsequently received, his suggestion that she act in “pornos” to earn money and then send him the links, and when the advertisements were posted. While this inference is plausible, it is not the only conceivable explanation for the texts that Ms. Yates received. The respondents argue that that I cannot fairly assess whether the justification defence will prevail in the absence of a full evidentiary record. I agree. Mr. St. Martin has consistently denied that he posted the advertisements. His credibility will have a substantial impact on the success or failure of the justification defence. I accordingly must conclude that the justification defence could reasonably fail with respect to this statement.

[110] Ms. Yates argues that the fair comment defence applies, because the CBC article states that she “believes” that Mr. St. Martin was responsible for the sex advertisement. If a comment is not based on fact, however, it cannot constitute fair comment. As a result, this defence could also fail.

[111] Ms. Yates also asserts a justification defence with respect to her posting, on her LinkedIn site, that Mr. St. Martin was tracking her movements. She relies on a text he sent referring to her application to work at the Keg restaurant and an email about her participation in a volleyball tournament. In his affidavit, Mr. St. Martin has again denied that the statement is true and explained how he knew about these activities. The success or failure of the justification defence will again depend on an assessment of his credibility. If his explanation is deemed reliable, the defence could realistically fail.

[112] Finally, Ms. Yates pleads justification in respect to her statement on the Reddit site that Mr. St. Martin “bragged about lawsuits against two former employees and how the lawsuits were made long simply to ensure they were expensive to defend. He would talk about wanting to destroy their lives”. Texts produced by Ms. Yates could support this statement. They are ambiguous, however, because they refer only to individual’s first names and do not provide the context in which they were sent. I cannot tell, based on the texts alone, whether Mr. St. Martin bragged about a lawsuit against two former employees. There is no text in which Mr. St. Martin explicitly states that he intends to destroy the lives of former employees, although some of the actions he threatens could reasonably have this effect. Mr. St. Martin denies he ever did so. Once again, the viability of Ms. Yates’ justification defence cannot be assessed on this record.

[113] Ms. Yates asserts a defence of qualified privilege in respect to her statements to the journalist who wrote the CBC article and to the statements in her Glass Door review.

[114] In its recent decision in Thatcher-Craig v. Clearview (Township), 2023 ONCA 96, at para. 56, the Ontario Court of Appeal held that, in assessing a defence of qualified privilege, the court must:

(1) Determine whether the defendant had “an interest or duty, legal, social, moral, or personal” to publish the impugned expression and that interest or duty was to a person or constituency that had a corresponding duty or interest to receive it; (2) If so, provide a precise characterization of the occasion of qualified privilege; and (3) Determine whether the privilege was defeated by malice or because the scope of the occasion was exceeded or abused.

[115] In Bent v. Platnick, at para. 124, the Court observed that the qualified privilege is grounded in “the social utility of protecting particular communicative occasions from civil liability”. The reciprocal duty or interest should therefore not be “viewed technically or narrowly”: Thatcher-Craig, at para. 70. In Safavi-Naini, the Ontario Court of Appeal held that qualified privilege applied to executive summaries of a workplace harassment investigation because the investigating law firm had a duty to complete the investigation and provide a report to the faculty of medicine that retained it, and the faculty had a corresponding duty to receive it.

[116] In the case at bar, I am of the view that the defence of qualified privilege is likely valid with respect to Ms. Yates’ communications to the police and to the CBC but may not prevail with respect to her Glass Door review. Individuals who believe that a crime has been committed have a moral duty to report it and the police have a corresponding duty to receive such reports. When contacted by media about a criminal case, a person involved in it may therefore have a moral or social duty to respond. It is not clear, however, that a person has a duty to post a review of a former employer on the internet to the public at large.

Stage 2(iii): Have Iron Horse and St. Martin Shown That the Harm Caused or Likely to Be Caused by the Expression Is Outweighed by the Public Interest in Protecting the Yates’ Expression?

[117] Having concluded that Iron Horse and St. Martin have met the onus of showing that the counterclaim has substantial merit and that Ms. Yates’ defenses to some elements of it could realistically fail, I must now consider whether the public interest nonetheless favours a dismissal of their action against the Yates.

[118] As already mentioned, this stage is the heart of the anti-SLAPP analysis, and the opportunity for the motion judge to assess “what is really going on” in the litigation.

[119] There is a strong public interest in protecting expression and debate on the topic of harassment and in not discouraging victims from speaking up. This interest is heightened when harassment is gendered or sexual, and when it takes the form of online communications. The latter is increasingly prevalent. Targets of online harassment may feel frightened, demeaned, and exhausted, particularly when a campaign involves the receipt of unwanted sexual propositions or innuendo or it implies that the sender knows the target’s personal information and habits. Victims of harassment should not be inhibited from disclosing what they have experienced because they fear being sued for defamation. It is legitimate to infer that allowing the lawsuit to proceed could prevent such victims from coming forward.

[120] There is and was a significant power imbalance between Ms. Yates, a young woman who has been on sick leave since June 2022, and Mr. St. Martin, a successful middle-aged businessman. When Ms. Yates worked for Mr. St. Martin, he had the ability to fire her. He no longer had this power after January 1st, 2017, but he had a huge financial and social advantage. He acknowledges that his company, Iron Horse, generates millions of dollars in annual revenue. Ms. Yates has limited means and social capital.

[121] The respondents contend that the counterclaim does not have any of the hallmarks of an anti-SLAPP suit. I find that it does. As will be discussed at greater length later in the context of the application of this part of the s. 137.1 test to the St. Martin Action, I find that the respondents have a history of using litigation, and threats of litigation, for strategic purposes.

[122] There is no direct evidence that any public debate has been or may be unduly chilled if the defamation counterclaim is allowed to proceed. Ms. Yates does not seem to have hesitated to disclose her allegations on social media because she feared being sued. She sued Mr. St. Martin and Iron Horse, putting at issue the parties’ entire history.

[123] There is also a public interest in permitting the counterclaim to proceed. As McLachlin CJ wrote at para. 57 of Grant v. Torstar, “the right to free expression does not confer a licence to ruin reputations.” In Platnick v. Bent, Côté J. noted at para. 146 that reputation is one of the most valuable assets that a person can possess, and that, because a good reputation is closely related to an individual’s innate worthiness and dignity, “it must, just as much as freedom of expression, be protected by society’s laws.”

[124] Beyond a plaintiff’s interest in re-establishing their reputation, they may claim general damages and lost past and future revenues: Pointes Protection CA decision, at para. 88, citing Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at paras. 117-21; and Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, at paras. 79-80. In his affidavit, Mr. St. Martin takes the position that Ms. Yates’ defamatory statements have harmed his reputation and that of Iron Horse, “affecting its ability to attract and maintain clients and maintain its professional image within the Canadian security industry”. He says that Iron Horse has suffered a decline in revenue, from $9.7 million in 2018 to $7.6 million on 2021. He attributes this declining revenue to Ms. Yates’ statements about the company. He also asserts that he has paid over $110,000 in fees to public relations agencies.

[125] Based on the current record, I am skeptical about the respondents’ ability to prove the damages they claim. The respondents have not filed any evidence substantiating a link between the company’s declining revenue or increased expenses and the impugned statements. As observed by Côté J. in Pointes Protection SCC, at para. 72, “evidence of a causal link between the expression and the harm will be especially important where there may be sources other than the defendant’s expression that may have caused the plaintiff harm”. The respondents will have to persuade a judge that the losses were caused by the statements, as opposed to the disclosure of the criminal charges against Mr. St. Martin, the suspension of his private investigator’s license for six months, and economic factors such as the COVID-19 pandemic.

[126] It is implicit in my discussion of the validity of Ms. Yates’ defenses, in which I focused on a few that might not succeed, that I am of the view that she will realistically prevail with respect to many if not most of the impugned statements. In light of this and the absence of any real evidence of the link between her statements and any losses suffered by the respondents, they may only be entitled to modest general damages.

[127] Based on the foregoing considerations alone, I would be inclined to dismiss the counterclaim. The respondents have a real interest in seeking redress for any damages to their reputation. In my view, however, there is a strong strategic element in their decision to begin a multi-million dollar counterclaim many months after the allegedly defamatory statements were made. This has a strong impact on my conclusion about what is really going on in this case.

[128] There is, however, one additional consideration that weighs in the respondents’ favour.

[129] The Court of Appeal has indicated that an anti-SLAPP motion may theoretically succeed with respect to an action asserted by way of a counterclaim: Park Lawn para. 58. In the case at bar, however, the dismissal of the counterclaim in this case will not meaningfully reduce the scope of the factual inquiry or spare the moving party meaningful costs. Most if not all of Ms. Yates’ entire history with Mr. St. Martin and Iron Horse will be relevant either way.

[130] In these circumstances, it is questionable whether granting the motion with respect to the counterclaim will serve any public interest. In my view, the objectives of s. 137.1 are not achieved if litigation on the subject matter of the expression will proceed, virtually unchanged, if the motion is granted. There may be circumstances where the moving party can show that the dismissal would have a significant impact on them, or on other similarly situated parties, beyond the spectre of a possible damages award. But no such evidence is before me in this case.

[131] I find that this last consideration tips the balance in favour of permitting the counterclaim to proceed. I accordingly deny the motion with respect to the counterclaim in the Yates Action.

Application of the S. 137.1 Analysis to the Claim in the St. Martin Action

Have the Moving Parties Established That the Proceedings Arise From an Expression That Relates to a Matter of Public Interest?

The Pleadings in the St. Martin Action

[132] In their action against Larry and Robin Yates, Iron Horse and Mr. St. Martin claim the same damages as in the counterclaim in the Yates Action, based not only on claims in defamation but for malicious prosecution.

[133] The allegations with respect to the claim for malicious prosecution can be summarized as follows:

• Ms. Yates made multiple untrue, disparaging, and defamatory complaints to Ottawa Police Services that included false or incomplete information.
• On three separate occasions, Mr. Yates maliciously contacted the Mayor of the City of Ottawa, the Attorney General for the Province of Ontario, and the Chief of Police, with the intention of causing Mr. St. Martin to be prosecuted, and knowingly provided false or incomplete information relevant to whether he would be charged.
• As a result of the false or incomplete information forwarded by Mr. Yates, Mr. St. Martin was criminally charged with four offences, three of which the Crown later withdrew.
• On around December 2017, Mr. Yates maliciously filed a complaint against Iron Horse with the Canada Revenue Agency, again with the purpose of causing him to be investigated, and again based on information which, to their knowledge, was false or incomplete. This triggered a CRA investigation but no reassessment;
• Mr. Yates maliciously filed a complaint against Mr. St. Martin with the Ministry of Public Safety, with the intention of causing the revocation of Mr. St. Martin’s personal private investigation license as well as Iron Horse’s private investigation license. This information was again knowingly false or incomplete. As a result of this information, Mr. St. Martin’s personal licence was revoked for six months.

[134] In respect to the defamation claim, the respondents allege that the Yates conspired to provide false and defamatory statements that were published in the CBC article. The statements are the same as those set out in the counterclaim in the Yates Action. The respondents further allege that, on December 23, 2017, Larry Yates posted the following statement on Twitter: “Who else is getting harassed by this Ottawa man? #robinstmartin” in December 2017, which Mr. St. Martin says is defamatory. They assert that this implies that Mr. St. Martin has committed a criminal offence.

[135] In the Yates’ statement of defence, they admit to making comments that appeared in the CBC article. Mr. Yates also admits to the December 2017 Twitter post and to attempting, unsuccessfully, to obtain assistance from the Chief of Police. He denies communicating with the Canada Revenue Agency, the mayor of the City of Ottawa, the Attorney General of Ontario or the Minister of Public Safety. Ms. Yates admits communicating with the OPS and the Crown Attorney’s office.

[136] The Yates deny that they are liable for any prosecutions or investigations against Mr. St. Martin or Iron Horse by the Crown or government agencies. They deny that they have made any untrue defamatory statements, and again raise defenses of justification, fair comment, qualified privilege, and responsible communication. They deny that Iron Horse and Mr. St. Martin have suffered any compensable damages. Finally, they assert that the malicious prosecution claims, as well as the defamation claims, are time-barred.

Does the Expression at Issue Relate to a Matter of Public Interest?

[137] The St. Martin Action arises from comments and communications that Robin and Larry Yates allegedly made with respect to Mr. St. Martin and Iron Horse to the media and to various authorities.

[138] I have already found that the expression in the CBC article relates to a matter of public interest. I make the same finding, for the same reason, with respect to Mr. Yates’ Twitter post, given the context in which it was made.

[139] Ms. Yates’ criminal complaints, and the Yates’ other communications to police and government authorities regarding her allegations that Mr. St. Martin engaged in criminal behaviour, also constitute expression relating to matters of public interest. The public has an interest in urging the state and the police to enforce laws and regulations that protect individuals and society at large. Victims of crime must be able to report their legitimate concerns to the police without fear that they may be sued as a result. The public likewise has an interest in ensuring that victims of crime are free to raise concerns if the police are not acting on a complaint. The same is true of citizens who raise legitimate questions about regulatory oversight. In this case, it is alleged that the Yates communicated concerns to the Ministry of the Attorney General about Mr. St. Martin and Iron Horse. Given the powers conferred to a party granted a licence under the Private Investigators and Security Guards Act, there is again a public interest in encouraging and protecting such reporting.

Have Iron Horse and St. Martin Shown That Their Claim Has Substantial Merit?

[140] I conclude that St. Martin Action, with one minor exception, lacks any substantial merit.

The Claim for Malicious Prosecution

[141] The respondents have not persuaded me that there is any realistic prospect that the claims for malicious prosecution against Mr. and Mrs. Yates will succeed.

[142] The Supreme Court of Canada set out the four necessary elements of successful claim for malicious prosecution in Nelles v. Ontario, [1989] 2 SCR 170:

1. The proceedings must have been initiated by the defendant;
2. The proceedings must have terminated in favour of the plaintiff;
3. The absence of reasonable and probable cause; and
4. Malice, or a primary purpose other than that of carrying the law into effect.

[143] As stated bluntly in Marcellin v LPS, 2022 ONSC 5886, a malicious prosecution case in which the defendant successfully moved for summary dismissal, at para. 113: “The bar for establishing malicious prosecution is notoriously high so as not to discourage citizens from giving statements to the police”.

[144] There is scant evidence of Mr. Yates’ involvement in any prosecution or investigation of Mr. St. Martin or Iron Horse, let alone sufficient evidence that could meet the Nelles criteria for a successful malicious prosecution claim against him.

[145] Based on the evidence on this motion, Mr. Yates contacted the Chief of the Ottawa Police Services twice, first in August then in October 2017. The OPS investigation ongoing at the time was closed in November 2017 without any charges being laid. The investigation was reopened the following year only after Ms. Yates advised the OPS about the forged promissory note. There is no evidence that the charges laid in July 2018 were the result of or influenced by Mr. Yates’ two emails to the Chief of Police.

[146] Mr. Yates wrote to the Crown Attorney on January 16, 2018. Based on its timing and contents, I accept Ms. Yates’ evidence that this email was sent in the context of her application for a peace bond, which was abandoned when Mr. St. Martin was charged. There is no evidence that this email resulted in those charges.

[147] There is no evidence that Mr. Yates ever contacted the mayor of Ottawa, the Canada Revenue Agency, or Minister of Public Safety. There is also no evidence that the mayor had any role in OPS’ decision to lay criminal charges against Mr. St. Martin. Even if there were evidence that Mr. Yates contacted the Minister of Public Safety, he could not be liable for malicious prosecution as a result. Mr. St. Martin’s investigative licence was suspended for six months. The proceedings therefore cannot be said to have terminated in his favour. It is also difficult to see how a limitations defence could realistically fail with respect to the claim based on the CRA audit, since Mr. St. Martin first accused Ms. Yates of contacted the CRA in August 2017.

[148] The respondents argue that Mr. Yates acted out of malice when he communicated to the Chief of Police and the Crown Attorney. They rely on his admission, in cross-examination, that he did not verify the truth of what his daughter was telling him before sending his communications. Given the limitations of the fact inquiry on this type of motion, I cannot determine this point. But even if Mr. Yates did act maliciously, the claim against him for malicious prosecution would fail on the other parts of the Nelles test.

[149] A malicious prosecution claim against Ms. Yates likewise lacks substantial merit.

[150] I begin by observing that, in their statement of claim, the respondents have failed to make factual allegations that could found a malicious prosecution claim against Ms. Yates. At paragraph 11, they allege that she “maliciously filed multiple untrue, disparaging, and defamatory complaints against S. Martin with the Ottawa Police Services, alleging amongst other things that Robin St. Martin had harassed and sexually harassed her (the “Police Reports”)”. In paragraphs 12 to 20, they allege that only Mr. Yates subsequently maliciously communicated false or untrue information to the mayor, the Attorney General, and the chief of police, intending that Mr. St. Martin be prosecuted. At paragraph 21, the respondents allege a causal relationship between Mr. Yates’ communications and the criminal charges:

21. As a result of Larry Yates’ malicious Mayor Complaint, Attorney General Complaint, and Chief Complaint (collectively, the “Complaints”), Robin St. Martin was charged with two counts of uttering a forged document, one count of criminal harassment and one count of obstructing justice. The Crown ultimately withdrew all charges except for one count of uttering a forged document.

[151] Nowhere in the pleading do we find a similar allegation of a connection between the allegedly false information communicated by Ms. Yates in the Police Reports (as defined in paragraph 11 of the statement of claim) and the laying of criminal charges. Even if it could be implied that the allegedly false information that Ms. Yates provided to the OPS was intended to result in a criminal prosecution, there is no allegation that this was its effect.

[152] In my view, this deficiency in the statement of claim is fatal. Even if the pleading were not deficient, however, the claim would fail based on the Nelles criteria.

[153] Independent of Ms. Yates’ prospective evidence, the police had reasonable and probable grounds for laying the charges. The “St. Martin and Associates” letter that Mr. St. Martin signed is an obvious and clumsy fabrication since Mr. St. Martin is not a lawyer and the law firm on the letterhead does not exist. It makes no difference, in my view, if Ms. Yates had asked for Mr. St. Martin’s help in collecting the account or if she had approved the letter. It was in his name, and he was the one who composed it, wrote it, signed it, and sent it. Ms. Yates did not produce the promissory note from her own records but from the Small Claim Court claim filed by Mr. St. Martin. If it were genuine, it is bizarre that Mr. St. Martin would not have produced it or referred to it in the numerous emails he sent to Ms. Yates in summer 2017 demanding payment of amounts on the Capital City Painters deal. His filing of it in the Small Claims Court Action establishes reasonable and probable grounds to charge him with obstruction of justice. Objective and reasonable grounds for the criminal harassment charge existed in the form of the emails that Mr. St. Martin sent to Ms. Yates in 2017, including an email that he fabricated to make it appear that she had stolen from him and from his company. The Crown would have to prove that they caused Ms. Yates to fear for her safety, and that Mr. St. Martin had the requisite intent. As noted in Marcellin, however, corroboration of every aspect of a victim’s account is not required for the police to form reasonable grounds to lay a criminal charge.

[154] Second, the respondents would also have to prove is that Ms. Yates initiated the prosecution against Mr. St. Martin. In Kefeli v. Centennial College of Applied Arts and Technology, the Court of Appeal held that, as a general rule, the court will view the police officer that laid the charge as the person who initiated the prosecution. A complainant can exceptionally be liable for malicious prosecution if (1) the facts they report to police are so uniquely in their knowledge that it was virtually impossible for the police or the Crown to exercise any independent discretion or judgment in determining whether or not to lay the charge; and (2) the complainant knowingly misrepresents or omits facts relevant to the decision to lay charges.

[155] The Court of Appeal expanded on the initiation requirement in D’Addario v. Smith, 2018 ONCA 163. D’Addario sued Smith and Napior for malicious prosecution arising out of criminal sexual assault charges that were brought against him but later stayed. The trial judge dismissed D’Addario’s claim rather than putting it to a jury. He held that evidence that the complainants had withheld information from the police was not enough. To meet the high bar of malicious prosecution, there would have to be “evidence that the defendants withheld exculpatory evidence; that they pressured the police in laying the charges or somehow compromised the independence of the prosecution”: D’Addario, at para. 15. The Court of Appeal upheld this decision, agreeing with the trial judge’s assessment that the officer who laid the sex assault charge did so on the basis of her own independent discretion: D’Addario, at paras. 25 to 26.

[156] There is no evidence that Ms. Yates knowingly withheld or provided false information from the OPS that would have had an impact on the OPS’ decision to lay charges. The respondents have not identified any untrue information provided by Ms. Yates with respect to the forgery or obstruction of justice charges. She may not have told the OPS about her involvement in the creation of the St. Martin & Associates letter but, for reasons I have just mentioned, her potential role is not relevant to the existence of reasonable grounds to lay a forgery charge against Mr. St. Martin. With respect to the criminal harassment charges, the respondents contend that Ms. Yates should have disclosed texts and emails between her and Mr. St. Martin showing that they were on good terms prior to July 2017. The criminal harassment charge eventually laid against Mr. St. Martin was that he harassed Ms. Yates between July 1st and September 30, 2017. Evidence of their earlier communications would have had no bearing on whether the investigating officer had reasonable grounds to believe that harassment had taken place after their relationship deteriorated. The emails sent by Mr. St. Martin to Ms. Yates that summer are objective evidence of harassment. In a criminal harassment case, the existence of a prior positive relationship between a complainant and an alleged harasser is not atypical. On the contrary.

[157] On this motion, the respondents argue that Ms. Yates initiated a private application for a peace bond and that the charges laid against Mr. St. Martin were a continuation of this proceeding. Ms. Yates’ application for a peace bond is not even mentioned in the statement of claim in the St. Martin Action.

[158] The respondents allege that Mr. Yates maliciously filed a complaint against Iron Horse with the Canada Revenue Agency in December 2017. As I have already mentioned, any action based on communication by either Yates to the CRA is almost certainly time barred. In any event, the respondents again allege only that Mr. Yates intended, in communicating with the CRA, that Mr. St. Martin would be investigated; that the information Mr. Yates furnished was relevant to the determination of whether an investigation should be commenced; and that Mr. Yates’ false or incomplete information triggered an audit. There are no such allegations made against Ms. Yates. They are also no allegations against Ms. Yates with respect to the Ministry of Public Safety.

The Defamation Claim in the St. Martin Action

[159] The defamation claim is based on the Yates’ statements in the CBC article, Mr. Yates’ Twitter post in late 2017, and (perhaps) statements made by the one or both of the Yates in their communications to the police, the mayor’s office, the chief of police, the Attorney General, the CRA, and the Ministry of Public Safety.

[160] The respondents allege that Mr. Yates conspired with Ms. Yates in making defamatory statements that were reproduced in the CBC article. The respondents have not persuaded me that there are grounds to believe that this claim has substantial merit. In their statement of claim, Mr. St. Martin and Iron Horse again allege that the CBC published the article. They do not allege that Mr. Yates ever published, republished, or reposted it, or that his communication of defamatory statements to Ms. Chevalier constitute publication.

[161] It is not clear whether the respondents are asserting a claim for defamation based on statements that the Yates allegedly made in their communications with the police, the mayor’s office, the chief of police, the Attorney General, the CRA, and the Ministry of Public Safety. If they are making such a claim, that claim must fail. Mr. St. Martin and Iron Horse have not pleaded the statements or gist of the untrue and defamatory statements allegedly made by the Yates in their communications. These communications are simply described in the pleading as false, untrue, disparaging and defamatory. This falls far short of the pleading requirement for a claim in defamation.

[162] On an anti-SLAPP motion, the motion judge must take care to consider only the defamatory statements set out in the pleading, and not other expression alleged by the plaintiff: The Court of Appeal recently held that a motion judge erred by reading into the actual statement of claim allegations more fully set out in the factum on the motion and thereby effectively allowing the respondents to amend their claim, contrary to s. 137.1(6): Thatcher-Craig, at para. 53.

[163] This leaves Mr. Yates’ Twitter post (“who else is getting harassed by this Ottawa man #robinstmartin”). In Bangash v. Patel, 2022 ONCA 763, at para. 11, the Court of Appeal emphasized that, on this part of an anti-SLAPP motion, it is not enough for the respondent to show that a claim is not frivolous. It must have substantial merit.

[164] I am doubtful about the respondents’ allegation that Mr. Yates’ statement on Twitter “constitutes very serious allegations of a criminal offence”. “Harassment” encompasses a wide range of behavior. At the time it was posted, no criminal charges had been laid against Mr. St. Martin and the CBC article had not been published. In the circumstances, I do not think someone reading the tweet would infer that Mr. St. Martin had committed a criminal act or even an act that would attract civil liability. I do, however, agree that the tweet could be found to be defamatory, in that it could cause a reader to think less of Mr. St. Martin.

Are There Grounds to Believe That the Yates’ Defences Would Fail?

[165] I have concluded that the malicious prosecution claims will realistically fail and that the only viable defamation claim in the St. Martin Action appears to be based on Mr. Yates’ tweet. I need therefore consider only whether Mr. Yates likely has a valid defence to the latter.

[166] The respondents have not persuaded me that there are grounds to believe that Mr. Yates’ defences will fail. There is ample evidence that Mr. St. Martin harassed Ms. Yates from July to September 2017, through emails containing veiled and open threats against her and her father. I do not need to decide, and am not deciding, whether Mr. St. Martin’s conduct attracts civil liability.

Does the Public Interest Favour the Continuance of the Action or Its Dismissal?

[167] On a merits-based analysis alone, I find that the public interest weighs in favour of the moving parties. In light of this, I do not strictly speaking need to weigh the competing interests in granting or dismissing the motion. I do so, however, because my findings on this point may be relevant to the Yates’ claim for damages under s. 137.1(9) or to costs.

[168] Based on the evidence before me, Mr. St. Martin and Iron Horse are advancing a civil claim strategically in response to Ms. Yates’ claim against them. Unlike the situation with the counterclaim to the Yates Action, the public interest in protecting Mr. Yates’ expression on a matter of public interest outweighs the interest in preserving the respondents’ right to sue him for damages flowing from it.

[169] The respondents took no steps to assert their claims prior to being served with the Yates Action. The malicious prosecution claims appear to be time-barred. The limitation period for a malicious prosecution claim is two years. Mr. St. Martin has not asserted that time did not begin to run in January 2020, when he pleaded guilty to a single forgery charge. More than two years passed between that date and the commencement of this action. More than four years passed between Mr. Yates posting of his statement about Mr. St. Martin on Twitter statement in December 2017. Again, there is nothing in Mr. St. Martin’s affidavit that indicates that he only discovered the existence of the tweet long after it was posted.

[170] It is not clear whether the defamation claim based on the CBC article is time-barred. Whether or not it is, there is no allegation that Mr. Yates published it or republished it. The respondents did not need to start the St. Martin Action to assert a defamation claim against Ms. Yates. They had already done so in the counterclaim to the Yates Action.

[171] In my view, the primary purpose of the Action is the addition of Mr. Yates to the litigation. He is the focus of most of the allegations in the statement of claim in the St. Martin Action. In these allegations, the respondents assert that Mr. Yates is solely responsible for the laying of criminal charges against Mr. St. Martin, the CRA investigation, and the suspension of Mr. St. Martin’s private investigator licence. He alone is also alleged to have engaged in malicious, high handed, callous and arrogant conduct that attracts punitive, aggravated, and exemplary damages. No such allegations are made against Ms. Yates in the St. Martin Action.

[172] The decision to target Mr. Yates is curious since, based on the evidence on the motion, he played a very peripheral role in the history between Mr. St. Martin and Ms. Yates. It is however consistent with Mr. St. Martin’s gratuitous references to and veiled threats about Mr. Yates in his 2017 emails. It is also consistent with the evidence that Mr. St. Martin and Iron Horse have a history of using litigation and threats of litigation as leverage. The Small Claims Court action against Ms. Yates, based on a forged promissory note, is an example. So is the fabricated lawyer’s letter, in which Mr. St. Martin threatened to sue the recipient for hundreds of thousands of dollars and to put a lien his house, if he did not pay a few thousand he owed within the next few hours. The record also includes texts from Mr. St. Martin in which he boasts about his willingness to start lawsuits for strategic reasons. According to the CBC article, court records show that Mr. St. Martin and Iron Horse have filed almost two dozen lawsuits over the last twenty years, including a lawsuit taking two former employees for more than $700,000. The respondents’ approach to the current litigation echoes Mr. St. Martin’s threats to Ms. Yates, in the summer of 2017, about going to war with her if she crossed him.

[173] A lawsuit will not automatically be dismissed on a s 137.1 motion just because it appears its purpose is strategic. My finding that the St. Martin Action is strategic is, however, relevant at this stage of the test.

[174] The right to freely comment on issues of public interest is a fundamental value. Protecting the ability of citizens to communicate allegations to the police and to regulatory bodies is critical to society’s security and the functioning of our justice system. So too is the ability of media outlets to investigate and report on the outcome of criminal proceedings, and for citizens involved in those proceedings to express their views and add context.

[175] Aside from the limitations issues, the merits of the Action are dubious. On my review of the allegations against Mr. Yates, the only claim that could succeed is that he defamed Mr. St. Martin by implying him as a harasser, on one occasion, on Twitter. If Mr. St. Martin’s defamation claim against Mr. Yates based on the tweet succeeded, he would not conceivably be awarded anything other than nominal damages. There is no evidence that anyone commented on this tweet or reposted it. The respondents can seek redress and damages for Robin Yates’ alleged defamation in the context of their counterclaim to her Action. They are in fact already seeking the same quantum of damages in the two Actions.

[176] Weighing the competing considerations, I conclude that the public interest favours the granting of the motion with respect to the St. Martin Action.

Conclusion

[177] The motion is granted in part. The St. Martin Action is dismissed.

[178] The Yates seek damages pursuant to s. 137.1(9) CJA. It provides that if, in granting an anti-SLAPP motion, the judge finds that the respondent brought the proceed in bad faith or for an improper purpose, the judge may award damages to the moving party.

[179] I direct that a further hearing be convened for the purpose of argument on the Yates’ entitlement to s. 137.1(9) damages and on the issue of costs on the motion. I direct the parties to book a date for hearing before me through the Ottawa Civil Case Management Office.

Justice Sally Gomery Released: July 18, 2023

COURT FILE NO.: CV-22-88865 and CV-22-89405 DATE: 18/07/2023 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: ROBIN YATES Plaintiff/Defendant by Counterclaim/Moving Party – and – IRON HORSE CORPORATION and ROBIN ST. MARTIN Defendants/Plaintiffs by Counterclaim/Responding Parties

AND BETWEEN: IRON HORSE CORPORATION and ROBIN ST. MARTIN Plaintiffs/Responding Parties

• and – LARRY YATES AND ROBIN YATES Defendants/Moving Parties

DECISION ON ANTI-SLAPP MOTION Gomery J. Released: July 18, 2023