COURT FILE NO.: CV-18-00600698-0000 DATE: 20230801

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

RICHARD BORAKS Plaintiff

– and –

AHMED HUSSEN (MINISTER OF IMMIGRATION REFUGEES AND CITIZENSHIP), PETER FONSECA, FRANCESCO SORBARA, THE ATTORNEY GENERAL OF CANADA, STEPHEN GREEN, SEAN O’SHEA, GLOBAL NEWS, CORUS ENTERTAINMENT, JOEL SANDALUK, GUIDY MAMANN, DENIS BUEDES BRITO, SABRINA QUARINIRI, JORNAL NORTH NEWS Respondents

Counsel: Rocco Galati Samantha Coomara, for the Plaintiff Brendan Hughes for the Defendants, Sean O’Shea and Global News and Corus Entertainment Lou Ciotoli, for the Defendants, Denis Buedes Brito, Sabrina Quariniri and Jornal North News Jeffrey Feiner for the Defendant Peter Fonseca, (observing)

Heard: February 2, 2023

A.P. Ramsay J.

Contents

I. Overview II. Procedural history III. Nature of the motion IV. The Parties V. Background VI. Claim against the Corus defendants VII. Claim against Jornal North News defendants VIII. Position of the parties i. The Plaintiff – Mr. Boraks ii. The Corus defendants iii. Journal North News defendants IX. The issues on the motions i. Were the Global Stories and Jornal North News Story, expressions about the plaintiff? ii. Do the proceedings arise from an expression made by these defendants related to a matter of public interest pursuant to s. 137.1(3) of the Act? iii. Are there grounds to believe that their underlying proceeding has substantial merit pursuant to s. 137.1(4)(a)(i) of the Act?; and, iv. Are there are grounds to believe that the defendants have no valid defense pursuant to s. 137.1(4)(a)(ii) of the Act?; and v. Does the harm likely to be or having been suffered by Mr. Boraks and the corresponding public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression pursuant s. 137.1(4)(b)? X. Disposition XI. Analysis i. Were the Global News stories and Jornal North News Story expressions about the plaintiff? ii. Do the proceedings arise from an expression made by these defendants related to a matter of public interest pursuant to s. 137.1(3) of the Act? iii. Are there grounds to believe that the underlying proceeding has substantial merit? i. The Corus defendants ii. The Jornal News defendants iv. The moving parties have valid defences in the proceeding i. Truth or Justification ii. Responsible Communication v. The weighing of public interest XII. Conclusion XIII. Costs

[1] These are two motions for dismissal of the plaintiff’s defamation lawsuit by two sets of defendants, Sean O’Shea, Global News, and Corus Entertainment (the “Corus defendants”), and Denis Buedes Brito, Sabrina Quariniri, and Jornal North News, (the “Jornal North News defendants”), pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43. These provisions were enacted to prevent legal proceedings that limit freedom of expression on matters of public interest. As recently noted by the Supreme Court of Canada, “strategic lawsuits against public participation” are lawsuits initiated against individuals or organizations that speak out or take a position on an issue of public interest. [1] 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, 156 O.R. (3d) 171, at para. 17.

[2] In Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, 165 O.R. (3d) 753, at para. 1, the Ontario Court of Appeal stated:

As its title suggests, the provision was designed to discourage the use of strategic litigation to unduly limit expression on matters of public interest; it was to strike a balance to ensure that abusive claims could not proceed but legitimate ones could continue. The target of this legislation is described by the acronym ‘SLAPP’: strategic lawsuits against public participation. Motions under s. 137.1 of the CJA are commonly referred to as anti-SLAPP motions.

I. Overview

[3] The plaintiff, Richard Boraks, was a lawyer specializing in Immigration Law, with deep roots in the Portuguese and Italian communities. Mr. Boraks has lobbied the government for years and was involved in helping shepherd in certain legislative reforms over the years. Mr. Boraks describes himself as a “leading advocate for undocumented trades workers permanent residency issues, in Ontario”.

[4] The defamation actions against the moving parties/defendants relate to reporting on an alleged pilot program for undocumented workers. Mr. Boraks maintains that the Government of Canada (Federal Government) announced and implemented a Pilot Project to accept a limited number of undocumented worker applications as a pathway to landed status. Mr. Boraks claimed the Pilot Project was announced at a press conference by then Immigration Minister John McCallum on December 22, 2016, and a meeting between MP Peter Fonseca and certain stakeholders on December 23, 2016.

[5] Both the Federal and Provincial Government officials have denied that any such Pilot Project ever existed. Following a complaint by one of Mr. Boraks’ client, a Global News reporter, Mr. O’Shea, later prepared, published and broadcasted a story by the defendant Global News, on a segment hosted by him called “Consumer SOS”. Mr. O’Shea subsequently sent some tweets about the story.

[6] Mr. Boraks has now sued three former public officials, the Attorney General of Canada, lawyers, the two news organizations, and the reporters/journalists in the wake of a story broadcasted and published in relation to accepting applications for the disputed Pilot Project from undocumented workers and charging them fees.

[7] The action against the Corus defendants relates to the story published and broadcasted by Mr. O’Shea on behalf of the defendant Global News on the segment hosted by him called “Consumer SOS”.

[8] The action against the Jornal North News defendants relates to an article published in its news publication.

[9] Mr. Boraks alleges that the stories of him are defamatory and seeks damages.

II. Procedural history

[10] These motions were originally scheduled to be heard July 17 and 18, 2019 but were adjourned to await the Supreme Court of Canada’s decisions on Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645 and 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587. The motions were booked for two days and commenced on November 17, 2021 but were not completed due to the severe illness of one of the party’s counsel. The hearing of the motions was completed in February 2023. Extensive materials were filed on these motions.

III. Nature of the motion

[11] The Corus defendants and the Jornal North News defendants move for an order pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, dismissing the plaintiff’s claim against them. They claim that the proceeding arises from an expression made by these defendants that relates to a matter of public interest. These defendants also seek damages in the amount of $30,000 pursuant to s 137.1(9) of the Courts of Justice Act, as well as costs of the motion and the action on a full indemnity basis pursuant to s. 137.1(7) respectively of the Courts of Justice Act.

IV. The Parties

[12] Mr. Boraks practiced Immigration Law in Toronto from the time he was called to the bar in 1975 to his retirement in January 2021. Mr. Boraks alleges in his statement of claim that he is a leading advocate for undocumented trade workers permanent residency issues in Ontario.

[13] Mr. O’Shea has over 35 years of experience as a journalist. He has worked for Global News since 1987. He produces a video consumer protection segment called "Consumer SOS" that regularly airs on Global News. He often also writes a corresponding article that is published on the Global News website.

[14] Global News is under the corporate umbrella of Corus Entertainment Inc. Global News is a news and current affairs division of the Global Television Network in Canada, which is owned by Corus Entertainment.

[15] Corus Entertainment Inc. is a Canadian media and broadcasting company established in 1999, which owns Global Television Network in Canada and Global News.

[16] Jornal North News is a Portuguese language newspaper.

[17] The defendants Denis Buedes Brito and Sabrina Quariniri are both employed by Jornal North News. Ms. Quariniri is a journalist and editor. She published the article on the Pilot Project, which is the subject matter of this lawsuit.

[18] The statement of claim names a number of public officials as party defendants including Minister Ahmed Hussen as well as Members of Parliaments (“MPs”) Peter Fonseca and Francesco Sorbara. The public officials did not respond to the motion, though counsel for Mr. Fonseca attended to observe the motion.

[19] The defendants Stephen Green, Joel Sandaluk and Guidy Mamann are lawyers named in the lawsuit but took no position.

V. Background

[20] Mr. Boraks was a lawyer specializing in Immigration Law and practicing in the Toronto area. He practiced immigration law between 1975 and 2021. He retired from practice in 2021.

[21] Mr. Boraks alleges that at the end of 2016, the Federal Government announced and implemented a Pilot Project to allow a number of undocumented workers in the Greater Toronto and Hamilton area to gain landed immigrant status. In his statement of claim, Mr. Boraks:

The Pilot Project is/was an undertaking by former Immigration Minister, Minister John McCallum, and his successor, Minister Ahmed Hussen. to honour previous promises made by government officials concerning undocumented workers, and to accept a limited number of undocumented worker applications, as a test group, to be assessed for the Federal Skilled Worker Class using substituted evaluation principles and procedure. The Pilot Project initially focused heavily on undocumented construction workers, which form a huge part of Ontario’s construction industry. The Pilot Project was a direct result of the UWC and the Plaintiff's extensive advocacy, on behalf of Ontario's undocumented workers.

[22] On December 22, 2016, then Minister of Immigration John McCallum, held a press conference. At paragraph 28(i) of his statement of claim, Mr. Boraks pleads that “(i) On December 22, 2016, Immigration Minister McCallum told the OTA Portuguese language media press that there would shortly be an undocumented worker policy announcement.”

[23] In his reply to the statement of defence of the Attorney General of Canada, Mr. Boraks points to the following statement as evidence that the Pilot Project was officially announced and was up and running as of December 22, 2016:

Well in certain cases we 're going to be reaching out to assist some of those people. But there is a very large number [of undocumented workers], so it has to be fairly limited. It will be a Pilot Project. [Emphasis added by Mr. Boraks in his pleadings]

[24] On the following day, December 23, 2016, MP Peter Fonseca met with a number of groups, including the Undocumented Workers Committee. At paragraph 28(j) of his statement of claim, Mr. Boraks pleads as follows with respect to that meeting:

(j) On December 23, 2016, MP Fonseca called the UWC asking the UWC and 15 OTA trades employers to attend at the Brampton office of the Co-Chair of the Liberal Caucus Committee, MP Sonia Sidhu. At this meeting, MP Fonseca and MP Sidhu announced that they would be working on a Pilot Project (the “Pilot Project") that would serve as the first step of the government's plan to address the wider undocumented worker issue.

[25] At paragraph 29 of his statement of claim, Mr. Boraks pleads that it was at this meeting that MP Fonseca announced the creation of the Pilot Project and the initial steps to implement the Pilot Project. Mr. Boraks pleads that:

At the December 2016 meeting, which announced the creation of the Pilot Project, MP Fonseca advised those present at the meeting (UWC and Trades Employers) about the initial steps to implement the Pilot Project, as follows:

(a) MP Fonseca advised that the UWC was not to promote the Pilot Project in the media or among undocumented workers at large because the Caucus committee required them to limit the initial applicants to a smaller “test” group, as the substitute evaluation procedure, was still in its infancy and required procedural testing;

(b) the Pilot Project was being implemented on an immediate basis. where no further regulatory or other approval procedures would be necessary;

(c) processing of applications would commence in the spring of 2016;

(d) the Pilot Project would initially be limited to 1,000 qualified applican1s:

(e) initial applicants would only be accepted from the OTA construction sector. If, by April 2016, the initial construction applications were of a high quality, then the program would be opened up to the food service and mechanic sectors;

(f) workers who had previously held a work permit would be preferred. however, the Pilot Project was open to applicants who had not previously held a work permit;

(g) successful applications would result in the undocumented workers being issued work permits and then being landed.

[26] Between 2017 to 2018, Mr. Boraks advised undocumented workers in the community to submit applications under the Pilot Project, for which he collected a fee.

[27] Mr. Boraks says that he submitted 140 applications and prepared an additional 100 that were not submitted.

[28] On or about January 10, 2017, Ahmed Hussen took over from Minister McCallum as the Minister of Immigration.

[29] On February 23, 2018, then Minister of Immigration, Ahmed Hussen, sent a letter to Manuel Alexandre, the Chair of the Undocumented Workers Committee, advising that a review was being conducted of various pilot projects to address possible pathways to permanent residency. Minister Hussen indicated that there was no active pilot project nor had there ever been one.

[30] Mr. Boraks says Minister Hussen’s letter signaled the end of the Pilot Project.

[31] On March 29, 2018, Nossa TV aired an interview with lawyer and defendant Stephen Green. Mr. Green denied that the Pilot Project existed and called it a “fraud” and indicated that “people are getting ripped off”.

[32] Mr. Boraks disseminated a letter to his “Italian Clients” on or about March 31, 2018, addressing comments of MP Sorbara that the Pilot Project never existed.

[33] Mr. Boraks indicates that in March 2018, the defendant Guidy Mamann started “poaching [Boraks’] Pilot Project clients based on the marketing ploy that the Pilot Project never existed”

[34] On April 2, 2018, Paolo Romandia, one of Mr. Boraks’ clients, sent an email to Mr. O’Shea. Mr. Romandia complained that he had paid $10,000 to Mr. Boraks, in part to submit an application under the Pilot Project only to later learn from the government that no such program existed. Mr. Romandia indicated that he had also filed a complaint against Mr. Boraks with the Law Society of Ontario (“LSO”). The email stated:

Hi, I paid thousands of dollars to an immigration lawyer with the promise of a pilot project to become a permanent resident in Canada. I paid approximately 10 thousand dollars for this. I have been advised by the government that no file exist, no application has been filed and no pilot project exists. This has been verified by an MP and the Immigration Minister's office. This lawyer continues to take in people for this project. I have been told there are around 300 to 400 people in this project and his goal is to take in 1000 applicants. There is no project and he is billing tens of thousands of dollars. His name is Richard Boraks and he operates out of Toronto. Is there anything you can do to help me.

[35] Between April 2 and April 3, 2018, Mr. O’Shea reached out to and heard from the client, (Mr. Romandia), several government officials and lawyers about the existence of the Pilot Project.

[36] On April 3, 2018, Mr. O’Shea conducted an on-camera interview with Mr. Boraks.

[37] On April 4, 2018, the Corus defendants published Mr. O’Shea’s article on the Global News website, aired the broadcast on Global News, and later published four Facebook and Twitter posts on April 4 and 5, 2018.

[38] On April 8, 2018, Mr. O’Shea was contacted by journalist Humberta Araujo, who worked for a Portuguese publisher that had been following the story with Mr. Boraks. Ms. Araujo indicated that she, too, was publishing stories about the alleged Pilot Project in the Portuguese Canadian media.

[39] On April 9, 2018, OMNI published an article on the Pilot Project. Mr. Boraks believes he is referred to as an Extortionist. OMNI is a multilingual and multicultural media broadcaster

[40] On April 13, 2018, an O Milenio article commented on Mr. Boraks and the Pilot Project and questioned Mr. Borak’s honesty. O Milenio is a local Portuguese newspaper.

[41] On April 14, 2018, another O Milenio article discussed Mr. Boraks and the Pilot Project and accused Mr. Boraks of deception and profiteering.

[42] On May 29, 2018, Mr. Boraks was interviewed by Brito from Jornal North News wherein Mr. Boraks stated, “If the people paid me money and they choose to leave because they do not believe the Pilot Project, that is their problem, not mine, because 90… 95% of my clients are still here because nobody is stupid…”. Jornal North News published the article on June 4, 2018.

[43] On June 16, 2018, Jornal North News published a clarification related to the June 4, 2018 article.

[44] On June 4, 2019, the LSO released its Interim Interlocutory Decision.

[45] On October 4, 2019, the LSO released an interlocutory decision.

[46] Mr. Boraks retired from practicing law in January 2021.

[47] The LSO releases its final decision on March 23, 2021,

VI. Claim against the Corus defendants

[48] Mr. Boraks alleges that Mr. O'Shea interviewed him and published a defamatory and libelous article and tweets. The alleged defamatory content is contained in the following publications, attached as Appendix A, and are summarized as follows:

(a) an April 4, 2018 article published on the Global News website;

(b) an April 4, 2018 broadcast that aired on Global News and was posted to the Global News website;

(c) a tweet posted by Mr. O’Shea on Twitter on April 4, 2018;

(d) a tweet posted by Mr. O’Shea on Twitter on April 5, 2018;

(e) a posting by Mr. O’Shea made to his "Consumer SOS" Facebook page on April 4, 2018;

(f) a second posting by Mr. O’Shea to his "Consumer SOS” Facebook page on April 4, 2018.

VII. Claim against Jornal North News defendants

[49] The claim against the Jornal North News defendants relates to the following articles, attached as Appendix B, by Ms. Quariniri:

a) a June 4, 2018 article published in Jornal North News;

b) a clarification published on June 16, 2018 in Jornal North News.

VIII. Position of the parties

i. The Plaintiff – Mr. Boraks

[50] Mr. Boraks asserts that in order to understand the Pilot Project, one must understand the history behind it. Mr. Borks pleads in his statement of claim that the “pilot project” began in November 2005 through then Immigration Minister Joe Volpe and his Ontario counterpart, former Eglinton-Lawrence MPP Mike Colle. The claim alleges that the two signed the Canada-Ontario Immigration Agreement “that would see $1.3 billion set aside to fund programs aimed at helping newcomers to Canada settle [sic].” Mr. Boraks pleads that in 2013, opposition immigration critic John McCallum pledged to help undocumented workers and he resumed his past cabinet post as immigration minister, he endorsed the pilot project on behalf of undocumented trades workers.

[51] Mr. Boraks alleges that on December 22, 2016, Minister McCallum told Portuguese language media that there would be a policy announced soon. The claim alleges that the next day, Mississauga East-Cooksville MP Peter Fonseca and Brampton South MP Sonia Siddu said at a meeting in Brampton that they would be working on a pilot project.

[52] The plaintiff claims that then Immigration Minister Ahmed Hussen and MPs Francisco Sorbara and Peter Fonseca participated in the creation and administration of the Pilot Project following Immigration Minister McCallum’s announcement and committal to it.

[53] Mr. Borax submits that the Pilot Project was in force from December 22, 2016 to February 23, 2018, when Minister Hussen's letter ended the Pilot Project.

[54] Mr. Boraks alleges that at the December 2016 meeting, which announced the creation of the Pilot Project, MP Fonseca advised those present at the meeting (UWC and Trades Employers) about the initial steps to implement the Pilot Project.

[55] Mr. Boraks submits his case is similar to the decision in Bent v. Platnick, 2020 SCC 23, except that his case is more egregious. He argues that he was the subject of baseless personal attacks. He further argues that his personal and professional competence, integrity, and reputation were attacked by Mr. O'Shea and Ms. Quariniri. He submits that Ms. Quariniri never had a single discussion with him.

[56] Mr. Boraks states that the evidence indicates that there are grounds to believe, on evidence capable of proof, that he suffered both reputational, financial, and other harm as a result of the defamation published by the defendants. He argues that there are no valid defences.

[57] Mr. Boraks submitted that neither of these defendants meets the requirements of this defence in that:

[58] With respect to Mr. O'Shea, Mr. Boraks argues that he:

i. Was selective and malicious in his refusal to review and investigate the evidence and sources put to him by the plaintiff.

ii. Chose not to follow up with Minister Volpe or Alexandre, nor the LSO about its decision which found that the Pilot Project did exist.

iii. Did not keep any notes or records with respect to anything that contradicted his malicious conclusion and innuendo that the Plaintiff was a fraud, and the calling into question the professional integrity of the Plaintiff, in the context of the Pilot Project.

iv. Ridiculed the Plaintiff after the fact.

v. Refused to follow up after the story was published.

[59] With respect to Ms. Quariniri, Mr. Boraks submits that she:

i. She never spoke to the plaintiff for a response.

ii. She merely republished O'Shea's work.

iii. She concluded, on her own accord, that the plaintiff was "extorting" his clients, without further investigation nor response from the plaintiff, based on alleged statements from an incognito source who is likely the sister-in-law of the co-defendant Brito.

iv. She never explored nor investigated the sources she cites which the plaintiff provided on with respect to the existence of the Pilot Project.

v. Only interviewed one (1) of the plaintiffs’ ex-clients, whom she refuses to disclose. However, her story alleges that the Plaintiff may be "extorting" money of his many clients.

ii. The Corus defendants

[60] The Corus defendants submit that in preparing the Global News stories, Mr. O’Shea interviewed and/or sought comment from multiple parties, including Mr. Romandia, Mr. Boraks, an immigration lawyer, and various governmental officials.

[61] The Corus defendants submit that Mr. Boraks claimed that the Pilot Project was announced by then Minister of Immigration, John McCallum at a press conference on December 22, 2016, at which he was not present. Mr. Boraks says he learned about the Pilot Project from two sources, a journalist who was present and reports in the media afterwards. Mr. Boraks cites the following statement from Minister McCallum as conclusive evidence that the Pilot Project was officially announced and up and running as of December 22, 2016:

Well in certain cases we 're going to be reaching out to assist some of those people. But there is a very large number [of undocumented workers], so it has to be fairly limited. It will be a Pilot Project

[62] The Corus defendants submit that Mr. Boraks was not at the December 23 meeting with MP Fonseca either.

[63] The Corus defendants submit that Mr. O’Shea reviewed the available documentation and, ultimately, addressed each party’s position in preparing the Global News Stories. The Corus defendants submit that they acted responsibly in investigating and publishing a story of public interest.

[64] The Corus defendants argue that the article and the video report on a dispute that was affecting the community of chiefly Portuguese and Italian immigrants and undocumented workers, who are Mr. Boraks’ client base. They submit that the article takes no sides but rather reports on the Pilot Project by presenting both the government’s side (which said it did not exist) and Mr. Boraks’ side (who said it exists and was accepting applications and signing people up for the Pilot Project).

[65] The Corus defendants rely on the defences of truth, justification and responsible communication, as well as a subset of responsible communication, the defence of reportage. The Corus defendants further submit that the defamation action does not have substantial merit. They argue that the Global News stories reported on a client’s complaints involving a lawyer and the uncertainty surrounding the Pilot Project and its existence. The Global News stories did not state as fact that Mr. Boraks did anything wrong, and the Corus defendants submit that a reader or viewer would not think less of Mr. Boraks. They argue that the Global News stories never made any allegation that Mr. Boraks is somehow a fraud artist or defrauding anyone. The only mention of fraud is from Mr. Boraks himself.

[66] The Corus defendants submit that this “limited evidence” aspect of SLAPPs is not as applicable to the within proceeding and should not be permitted to be used by Mr. Boraks as a shield.

iii. Journal North News defendants

[67] Jornal North News is a Portuguese language weekly news publication targeted at the Portuguese community in Toronto. On June 4, 2018, Jornal North News published a summary report written by Ms. Quariniri regarding the allegations made by one of Mr. Boraks’ former clients, Mr. Boraks’ response to that client, and the Government of Canada’s position with respect to the existence of the Pilot Project.

[68] The Jornal North News defendants state that on May 28, 2018, one of Mr. Boraks’ former clients contacted Mr. Brito, who relayed the information to Ms. Quariniri. She considered undocumented workers and the Pilot Project to be of public interest and arranged for Mr. Brito to seek out Mr. Boraks’ comment. She interviewed Mr. Boraks on May 29, 2018 and ultimately published the report on June 4, 2018.

[69] On June 5, 2018, Mr. Boraks served Jornal North News with his Libel and Slander Act notice. On June 15, 2018, the Jornal North News defendants published a clarification of the June 4, 2018 article, which indicated that it meant “to advise the public of the practices some individuals are resorting to in order to procure services to the most vulnerable people trying to get a status in Canada.” The article clarified it had “nothing to do with the character or the professional standards or ethical practices of Mr. Richard Boraks or his staff.” Further, the article apologized to any individual mentioned in the article for any inconvenience, which included Mr. Boraks.

[70] The Jornal North News defendants submit that the proceeding arise from an expression made by them related to a matter of public interest. They submit that Mr. Boraks does not meet his burden to show that there are grounds to believe that the claim has substantial merit and that there are grounds to believe that the defendants have no valid defence in the proceeding. They submit that they have put in play the defences of justification, fair comment and responsible communication on matters of public interest. On the issue of the harm likely to be suffered by Mr. Boraks as a result of the expression and whether the corresponding public interest in allowing the preceding to continue outweighs the deleterious effects on expression and public participation, the Jornal North News defendants point to the proceeding’s negative media coverage about the Pilot Project as compared to the modest, if any, damages claimed by Mr. Boraks.

IX. The issues on the motions

[71] The following issues are raised on these two motions:

i. Were the Global Stories and Jornal North News Story, expressions about the plaintiff?

ii. Do the proceedings arise from an expression made by these defendants related to a matter of public interest pursuant to s. 137.1(3) of the Act?

iii. Are there grounds to believe that their underlying proceeding has substantial merit pursuant to s. 137.1(4)(a)(i) of the Act?; and,

iv. Are there are grounds to believe that the defendants have no valid defense pursuant to s. 137.1(4)(a)(ii) of the Act?; and

v. Does the harm likely to be or having been suffered by Mr. Boraks and the corresponding public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression pursuant s. 137.1(4)(b)?

X. Disposition

[72] For the reasons below, the claims against the Corus defendants and the Jornal North News defendants are dismissed in accordance with s. 137.l of the Courts of Justice Act.

XI. Analysis

i. Were the Global News stories and Jornal North News Story expressions about the plaintiff?

[73] Both the Global News Stories and the Jornal North News Story were about the plaintiff. The Global News story by Mr. O’Shea included a video news story and an article detailing the story with a link to the video, which was hosted on the Global News' s website.

[74] The Jornal North News Story of June 4, 2018 is clearly also about Mr. Boraks. It includes an interview of his former client about “the accusations of extortion by his former clients”, an interview with Mr. Boraks and a reference to the Global News article by Mr. O’Shea on the Pilot Project.

ii. Do the proceedings arise from an expression made by these defendants related to a matter of public interest pursuant to s. 137.1(3) of the Act?

[75] The objective of s. 137.1 of the Courts of Justice Act is expressly set out in the provision itself, which reads as follows:

[76] The purpose of so-called anti-SLAPP motions is stated in 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.

[77] In Pointes Protection Association, at para. 2, Côté J., speaking for the court, stated:

Strategic lawsuits against public participation (“SLAPPs”) are a phenomenon used to describe exactly what the acronym refers to: lawsuits initiated against individuals or organizations that speak out or take a position on an issue of public interest. SLAPPs are generally initiated by plaintiffs who engage the court process and use litigation not as a direct tool to vindicate a bona fide claim, but as an indirect tool to limit the expression of others. In a SLAPP, the claim is merely a façade for the plaintiff, who is in fact manipulating the judicial system in order to limit the effectiveness of the opposing party’s speech and deter that party, or other potential interested parties, from participating in public affairs.

[78] Subsections 137.1(3) and (4) of the Courts of Justice Act set forth the test on an anti-SLAPP motion. Those subsections read:

(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.

[79] Section 137.1 (3) of the Courts of Justice Act places an initial burden on the moving party to show, on a balance of probabilities, that the proceeding arises from an expression relating to a matter of public interest: Pointes Protection Association, at para. 18. The moving party must satisfy the court that (i) the proceeding arises from an expression made by the moving party; and (ii) the expression relates to a matter of public interest: Pointes Protection Association, at paras. 20-21. The threshold burden is not a heavy onus, and what is a matter of public interest is viewed expansively, liberally and generously: Pointes Protection Association, at paras. 28-30. The standard to be met is on a balance of probabilities: Pointes Protection Association, at para. 23.

[80] The Supreme Court noted in Pointes Protection Association, at para. 28, that “public interest” used in the statutory languages of s. 137.1(3) ought to be given a broad interpretation. The question of public interest is a matter to be established: Pointes Protection Association, at para. 27.

[81] On cross examination, Mr. Boraks accepts for the purposes of s. 137.1(3) that the subject expression relates to a matter of public interest. I would agree. As Mr. Boraks acknowledges in his own affidavit, undocumented workers are a vulnerable class of people. The existence or non-existence of a government policy in the form of a Pilot Project to pave the way for undocumented workers to attain landed status and the alleged collection of monies by a lawyer from those individuals to submit applications to a program that the Federal Government says does not exists is a matter of public interest.

[82] I am satisfied that, on a balance of probabilities, both sets of defendants have met the threshold burden under s. 137.1(3) of the Act. The reported expressions are the basis of the proceedings against these defendants. The Global News article, video and tweets each constitute an expression that relate to a matter of public interest. The defamation proceeding against the Corus defendants arises from those expressions. Similarly, the Journal North News article(s), to the extent that the clarification is included, also each constitute an expression. The underlying proceeding against Jornal North News defendants arises from that expression.

[83] Based on the claims against the Corus defendants and the Jornal North News defendants, which reported on the complaints from clients giving money to Mr. Boraks for a Pilot Project that the Government said did not exists but that Mr. Boraks insists was created, I am satisfied that, on a balance of probabilities, the proceeding against them arises from expressions made by them and that these expressions are related to matters of public interest.

iii. Are there grounds to believe that the underlying proceeding has substantial merit?

[84] Mr. Boraks asserted in his pleading that “the pilot project is/was an undertaking by former Immigration Minister John McCallum, and his successor, Minister Ahmed Hussen, to honour previous promises made by government officials concerning undocumented workers and to accept a limited number of undocumented worker applications, as a test group, to be assessed for the Federal Skilled Worker Class using substantiated principles and procedure.” At the heart of the defamation case against the moving defendants is whether the Pilot Project existed, as claimed by Mr. Boraks.

[85] Where the moving party meets its initial burden under s. 137.1(3), as in this case, then s. 137.1(4) will be triggered and the burden will shift to the responding party to show that its underlying proceeding should not be dismissed. The responding party must satisfy the court that it meets both (a) and (b) to avoid a dismissal: Pointes Protection Association, at para. 33.

[86] The merits-based analysis under r. 137.1(4) has two elements. Section 137.1(4)(a) mandates that the responding party must satisfy the court that there are “grounds to believe” that the underlying proceeding has “substantial merit” and that the defendant has “no valid defence”. This contemplates that “the parties are expected to put forward a record, commensurate with the stage of the proceeding at which the motion is brought, that lends itself to the inquiry mandated under s. 137.1(4) (a). Thus, although the limited record at this stage does not allow for the ultimate adjudication of the issues, it necessarily entails an inquiry that goes beyond the parties’ pleadings to consider the contents of the record (the extent of such consideration will be explored further in the next section)”, Pointes Protection Association, at para. 38.

[87] When applying the legislated criteria under s. 137.1(4)(a) of the Act, “ ‘grounds to believe’ requires that there be a basis in the record and 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 Association, at para. 39.

[88] Dealing with the first part of the twin hurdles Mr. Boraks must clear, the claim for defamation is anchored to whether the Pilot Project, for which he was, by his own admission, collecting monies from clients, existed. One of the defences advanced by both sets of defendants is justification or truth.

[89] On the materials before me, Mr. Boraks has not discharged his burden under s. 137.1(4)(a)(i) of showing that there are grounds to believe that his defamation proceeding against the two sets of defendants has substantial merit. This is grounded in, part, by the availability of justification or truth in this case. The only evidence Mr. Boraks has presented with respect to the existence of the Pilot Project comes from Mr. Boraks himself based on hearsay. Both the Federal Government, which he says created the Pilot Project, and the Provincial Government have denied its existence. The twin side of protecting expressions on matters of public interest is to “ensur[e] that a plaintiff with a legitimate claim is not unduly deprived of the opportunity to pursue it”: Pointes Protection Association, at para. 46.

[90] The Supreme Court of Canada 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 Association, para. 49.

[91] In order to obtain a judgment in defamation, Mr. Boraks has the onus of proving the following:

i. that the impugned words referred to him;

ii. that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the minds of a reasonable person; and

iii. that the impugned words were published, meaning that they were communicated to at least one person other than the plaintiff: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28; see also Peter A. Downard, The Law of Libel in Canada, 5th ed. (Toronto: LexisNexis Canada, 2022), at §1.02.

i. The Corus defendants

(a) The O’Shea article

[92] On April 4, 2018, Mr. O’Shea published the article in Appendix A on the Global News website.

(b) The O’Shea video

[93] The video accompanying Mr. O’Shea’s article was filed on the motion. The video is a partial interview by a reporter of Mr. Boraks and his client, with occasional voice-over comments by Mr. O’Shea. Mr. Boraks is heard to say at the beginning of the video, “If there isn’t a Pilot Project, then I lied to him.”

[94] In the video, Mr. Boraks insisted that the Pilot Program existed. The following exchange took place between Mr. Boraks and the reporter:

Mr. Boraks: There is only one issue here, going back over and over the same thing: Is the Pilot Project real?”.

Reporter: Your answer is?

Mr. Boraks: Yes.

Reporter: And you can’t prove it?

Mr. Boraks: That’s nonsense, it’s proven.

[95] Mr. O’Shea’s voice-over then indicates that Mr. “Boraks points to statements by former Immigration Minister John McCallum in 2016. He claims that McCallum and the Liberals promised a program; that there is no way such a program could not go ahead”. The video again cuts to Mr. Boraks and the following exchange takes place:

Reporter: One in a billion?

Mr. Boraks: One in a billion. The Pilot Program was announced, it has to be in force.

[96] Mr. O’Shea’s voice-over is again introduced, stating, “Except the Federal Immigration Office says there is no project Boraks describes. Liberal MP Fonseca echoes that in a letter to Global News.” Then an image of the letter is shown on screen. A further exchange occurs with the reporter and Mr. Boraks as follows:

Reporter: You would never take money in the belief that there is no program?

Mr. Boraks: Well, of course not.

[97] There are snippets of the interview with the client who says, “But there is no project”. This is followed by O’Shea’s voice-over: “Boraks took about $10,000.00 from Romandia. Now, four years after coming here, he is being forced to leave the country next week”. The video pivots back to Mr. Romandia who says: “That’s all I got is removal orders”.

(c) The O’Shea tweets and Facebook posts

[98] On or about April 4, 2018, Mr. O'Shea posted the first of four tweets, which stated:

EXCLUSIVE ON GLOBAL Immigration lawyer threatens me if I make him look bad: he says there is a "pilot program" for undocumented workers but federal/provincial governments say it isn't so. Read and watch. [The first Tweet contained a link to the broadcast.]

[99] On April 5, 2018, Mr. O'Shea posted the second Tweet, which read:

Here's a cut down of my sit down with Toronto lawyer Richard Boraks: the "pilot project" & why I better not make him look like a "bad boy"

[100] Mr. O’Shea also posted the following on Mr. O’Shea’s "Consumer SOS" Facebook page on or about April 4, 2018:

Lawyer calls me an "amateur" as he defends accepting client (and their money) on the basis of an immigration program the federal government says does not exist. Watch and read. [The Facebook post contained a link to the broadcast.]

[101] Mr. O’Shea also posted the following second comment to his Facebook page on or about April 4, 2018.

I am an "amateur". I better watch myself. "If you don’t do your homework ... I'm coming at you." Lawyer who has been selling a pilot program for undocumented workers sits across from me. [The second Facebook post contained a link to the broadcast.]

ii. The Jornal News defendants

[102] The Jornal News article and the clarification are Appendix B on the Global News website is at Appendix A.

[103] As for the clarification and apology published by the Jornal News defendants on June 16, 2018, it reads, as follows:

"In our previous edition of the "North News" of 1-15 June, we published a story about the treatment of “illegal immigrants" by the office of the lawyer Richard Boraks of the city of Mississauga. To the best of our ability with this article our intention was to advise the public of the practices some individuals are resorting to in order to procure services to the most vulnerable people trying to get a status in Canada. This was our intention and only this, and the said article has nothing to do with the character or the professional standards or ethical practices of Mr. Richard Boraks or his staff. It is therefore that the intention of the Editor in chief and the writer of the article was, by any means, not to create wrong impressions of "biased, slanderous and defamatory" against any person involved. It is therefore that we regret any misunderstanding my caused our article or translation of the meaning of the article and we express our apologies to any individual for any inconvenience that may have caused the article, as part of the said operation.

June 16, 2018 Edition #99 – Clarification”

[104] The first element of the test is met in both instances. Both the Corus defendants and the Jornal North News articles report on Mr. Boraks and the Pilot Project. Mr. Boraks is specifically mentioned by name in the articles and the Facebook pages and tweets by Mr. O’Shea. The latter link to the broadcast where he is interviewed. The third element of the test is also met as the articles by both sets of defendants were published either online (in the case of Mr. O’Shea’s article and his tweets) and in news article in the case of Jornal North News, read by members of the Portuguese community.

[105] However, in my view, whether the Global News Stories and the Jornal North News article are defamatory must be judged from a reasonable person’s perspective. A “reasonable person” has common sense, is reasonably thoughtful and well-informed and does not have an overly fragile sensibility. They are not naïve or unduly suspicious or avid for scandal. See Miguna v. Toronto (City) Police Services Board, [2004] O.J. No 2455, at paras. 3-4, aff’d [2005] O.J. No. 107 (C.A.) (https://www.canlii.org/en/on/onca/doc/2005/2005canlii107/2005canlii107.html). They would understand the difference between allegations and proof of guilt.” See Frank v. Legate, 2015 ONCA 631, 390 D.L.R. (4th) 39, at para. 40. In this case, Mr. O’Shea’s article is based on the facts as obtained from the interview with Mr. Boraks, the reporter’s interviewer with the client and the responses received from government officials and immigration lawyers. His tweets refer to statements that Mr. Boraks himself makes to the reporter in the interview. In my view, a reasonable person reading Mr. O’Shea’s article, seeing the video and reading the tweets would understand the difference between any allegations made by Mr. Boraks’ client and proof of guilt. Mr. O’Shea does not offer his views but rather presents the competing sides.

[106] Similarly, the Jornal North News article sets out the debate that was raging in the community, the complaint made by Mr. Boraks’ client and Mr. Boraks’ position. While the title “Lawyer Suspected of Extorting Money from Illegal Immigrants” may be misleading on several levels, the alleged Pilot Project was to address undocumented workers. As Doherty J.A. noted in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, 142 O.R. (3d) 161, at para. 54, the question is “what is the expression about, or what does it pertain to?” As Côté J. stated for the Supreme Court in that same case, “it is not legally relevant whether the expression is desirable or deleterious, valuable or vexatious, or whether it helps or hampers the public interest”: Pointes Protection Association (SCC), at para. 28.

[107] I also note that Mr. Boraks is on record admitting that he was taking money from the undocumented workers. He is on record (the video) saying that if the program did not exist he lied to his client (Mr. Romandia). There is absolutely no evidence before the court on the existence of the Pilot Project. As Mr. Boraks indicated in the video reporting to the Global News reporter, the question is: “Is the Pilot Project real?” On the evidence before me, the Federal Government has consistently denied that any such Pilot Program described by Mr. Boraks existed. And, as he also noted in the video, if it were not real then he lied to his client. While he was referring to Mr. Romandia who precipitated the interview with Global News, it would be the same for all the other applicants to a program that the Government said did not exists.

[108] What is the evidence in the record being relied upon by Mr. Boraks in support of the existence of the Pilot Project?

[109] Mr. Boraks claimed that Pilot Project details and eligibility criteria were outlined by MP Peter Fonseca at a December 23, 2016 meeting. Mr. Boraks was not in attendance at the meeting. The transcript of the meeting states the following:

Now this will be done as a Pilot Project here in the GTHA. (…) So by the spring there will be an intake. So by the spring, we will start bringing in. Now, this is like I said, this is being, this is not something we are announcing to everybody, this is a pilot, this is a pilot ... as I said for, for all of us to be successful, we need successful candidates, those that have been good citizens (...) and as they come in that's how the Pilot will flow out. But what I can tell you, we are projecting is by very early spring, that we would be moving on this. This is a Pilot Project, that we wanna see ,…. [Emphasis added]

[110] During the period from December 22, 2016, what Mr. Boraks called the announcement of the Pilot Project, to February 23, 2018, which he submits is the end of the Pilot Project, Mr. Boraks submitted 140 applications and prepared another 100. He conceded that the applications were not submitted to the Ministry as would be the normal course but rather, he claimed, directly to MP Fonseca, at his direction. He has produced no evidence in the record, that the Pilot Project existed. He received no confirmation or acknowledgement from MP Fonseca’s office that the applications had been received. He does not know whether the courier packages were opened. He never followed up with MP Fonseca’s office or anyone else to confirm that any applications had been received and/or forwarded to the Ministry for processing.

[111] Mr. Boraks pleads in his statement of claim that in January 2017, MP Fonseca replaced John McCallum in January 2017. Mr. Boraks alleges that MP Fonseca directed that the applications should be sent to his office. Mr. Boraks pleads that he started submitting applications directly to MP Peter Fonseca’s office related to the Pilot Project in April 2017.

[112] On the record before the court, the former MP Hussen has indicated that there was no Pilot Project, and no applications were received. The MP’s office also outlined the protocol for applications. Aside from Mr. Boraks allegation, there is no evidence that any such direction was given by MP Fonseca.

[113] Mr. Boraks relies on comments made by Minister Hussen at a meeting on September 17, 2017, which “categorically” show[ed] his “unconditional support for the Pilot Project.” The comments relied upon by Mr. Boraks in fact reveal that the Ministry was trying to create a program and suggest consultations were ongoing. However, on cross-examination, Mr. Boraks stated the above comments “absolutely” confirmed the existence of the Pilot Project. He claimed that Immigration Law is an art and not a science and that Minister Hussen’s words speak for themselves and require no translation. The following is the relevant passage:

… with respect to looking at this issue and looking and examining ways to regularize this people, that conversation has not stopped. This was a process that was began by the previous Minister John McCallum , and when I became the Minister I did not stop that process and, what l can tell you though, is that when you are embarking on a process like that, and you’re trying to create a program to regularize people, it's not something that you can just do in one day, there’s a lot of consultations, not just with the community or with the industry, but also within government, you know, there's a lot of things that have to be considered, because you are talking about something that is outside of the regular system, so, so, that's what is happening right now, I can categorically tell you that, that process has not been stopped... [emphasis added]

[114] Mr. Boraks also points to an October 8, 2017 statement by MP Fonseca as confirming the existence of the Pilot Protect. At paragraph 42 of his statement of claim, Mr. Boraks states that on October 8, 2017, MP Fonseca confirmed to OMNI television the existence of a Pilot Program but stated that it required review. Mr. Boraks produced, as part of his answers to undertakings, transcripts of the interview between the OMNI interviewer, Sergio Morato, and MP Fonseca on the Pilot Project. The following is an excerpt from the transcript:

S.M. Therefore this is a Federal Pilot Project that still under study?

P.F. Yes and how this program is being done and the process has to go through the Government.

The Minister agrees that we need this program he has within his mandate to have a program to help those who came as temporary workers or students, so that can have a path to citizenship and this program is a bit different but it will, as I say, go on the back of others to be able to integrate into the programs we have within the Ministry of Immigration and Citizenship.,

S.M. Peter as you said, you met with the Minister of Immigrationb [ sic ], when can this Pilot Project be implemented? Is there a date?

P.F. Yes, now this Fall/Winter, the Minister said he was going to speak with the Prime Minister with the cabinet. The cabinet has to give the approval, they have to say yes, that is a good program and how it is built as I said about the parameters that the program has, and so on and then forward the Minister can make the announcement to launch the program.

S.M. So, by the end of the year the announcement will be made regarding the Pilot Projec t.

P.F. I can continue to work on this program. I don’t know if it will be until the end of the year or next year, but I know that the process is in progress for the project to be launched. [Emphasis added]

[115] In his affidavit, Mr. Boraks states he produced evidence to Mr. O'Shea proving that the Pilot Project existed, which was ignored by him. On the record before the court, the evidence relied upon by Mr. Boraks to prove the existence of the Pilot Project in fact indicates a program was still in development to move towards a Pilot Project. Mr. Boraks has pleaded excerpts of a transcript of a recording from that meeting which he claims confirm the details, criteria and implementation of the Pilot Project. Key portions of those transcripts, as pleaded by Mr. Boraks, are set out.

[116] Despite the clear wording of Minister Hussen’s letter that there was “no active pilot project nor has there ever been one”, Mr. Boraks claims this signals the “end” of the pilot project. When asked by Mr. O’Shea during the April 4, 2018 interview, Mr. Boraks stated that he was “absolutely” still signing people up for the Pilot Project at that time. On cross examination, Mr. Boraks conceded that following Minister Hussen’s February 23, 2018 letter, he continued to sign people up for the Pilot Project.

[117] By the time of the publication of Mr. O’Shea’s article and video, and certainly by the time of the publication of the Jornal North News article, the existence or non-existence of the program was a hot topic of discussion in the affected communities. Minister Hussen’s letter to the Chair of the Undocumented Workers Committee may have only precipitated this.

[118] Six weeks before the Global News Story, Minister Hussen sent a letter dated February 23, 2013 to Manuel Alexandre, the Chair of the Committee. At paragraph 48 of the statement of claim, Mr. Boraks pleads as follows:

48. On February 23, 2018, Minister Hussen sent a letter to the Manuel Alexandre, the Chair of the UWC, wherein he stated contrary statements: that the Pilot Project ‘did not exist’, but also that the Pilot Project "was being reviewed", and in fact "never existed". It was at this point, for the first time, that the Minister and his officials made it clear that they would not be proceeding with their announced undertaking and promise to process Pilot Project applicants.

[119] Mr. Boraks’ assertion that the letter contained contrary statements is not supported by the letter itself. Of significance, however, is Mr. Boraks’ admission on cross examination that the letter had been “a bombshell” that led to “allegations and concerns throughout the community” and his claim that Mr. Green’s comments were “part of the ongoing discussion that was flying in the community” Mr. Boraks also indicated that “the allegations in the community that --flowing from the Minister's letter, they were hot and heavy all the way through. It -- it was a big debate in the community, and this Green commentary fed into that -- into that discussion and debate that was big, big news. ”

[120] On cross-examination Mr. Boraks stated as follows:

A. To answer your question, as a result of the Global article, t here was clearly a wildfire discussion going on in the community as to who is a liar. Is it Boraks or is it the politicians, especially Hussen. And that is the issue that the community had to make up its mind on. You have got union community. I would suggest everybody in the community was debating... because in every family pretty much you have somebody who is an undocumented worker… And the big issue was, who is a liar, Boraks or Hussen [Emphasis added].

[121] In fact, the preamble of the Jornal North News article starts with, “In recent months, the Canadian lawyer Richard Boraks, has been the most cited name when it comes to undocumented citizens in the country.” On the evidence before me, Mr. Boraks had already been a topic of discussion in the media before either of the defendants wrote their stories. In fact, they were contacted by Mr. Boraks’ very clients, who were complaining that they had paid significant sums of monies in furtherance of a legalization process said to be opened up by the Federal Government.

[122] In or about March 2018, Mr. Boraks was the subject of social media messaging by immigration lawyer Guidy Mamann inviting any of Mr. Boraks’ clients to consult with him for second opinions regarding the Pilot Project. Mr. Boraks characterized his relationship with Mr. Mamann as “publicly toxic”. Mr. Boraks alleges that Mr. Mamann had publicly accused him of fraud and had used his column in a Toronto newspaper to falsely accuse him of defrauding clients with non-existent immigration programs. On cross examination he stated that:

Prior to my meeting O'Shea in April 2018, Mamann had started on March 22, 2018 poaching my Pilot Project clients based on the marketing ploy that the Pilot Project never existed ...[emphasis added].

[123] Mr. Boraks has sued lawyer Steven Green. On or about March 28, 2018, Mr. Green apparently phoned into a Portuguese language OMNI TV production, Nossa TV, and commented to the host that the Pilot Project did not exist, that the video of the purported announcement was a fraud and that he was concerned that the community was paying for a program that did not exist. This conversation was posted on Youtube on March 29, 2018. In his statement of claim, Mr. Boraks alleges that Mr. Green’s comments caused him “actionable harm”. He pleads the transcript of the call, noting comments from Mr. Green that the Pilot Project was a “fraud”, that he is an immigration lawyer and there “is no program out there”, and that he is concerned that “ people are getting ripped off ” .

[124] While “actual harm to reputation is not required to establish defamation”, there must be “a realistic threat that the statement, in its full context, would reduce a reasonable person’s opinion of the plaintiff”: WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 78. Against the backdrop of the “bombshell” of Minister Hussen’s statement that no Pilot Project was active or ever existed (regardless of Mr. Boraks’ insistence even on this motion that there had been one), in my view, it is not clear how the content of any of the articles tended to lower Mr. Boraks’ reputation in the eyes of a reasonable person.

[125] On the record before me, other individuals complained; there were other media reports; a number of clients complained to the LSO.

[126] The evidence that Mr. Boraks relies upon to support his position that the Pilot Project existed suggests otherwise. For instance, as evidence of the government announcing the end of the Pilot Project, Mr. Boraks points to a February 23, 2018 letter from Minister Hussen to Manuel Alexandre, the Chairman of Mr. Boraks’ client, the Undocumented Workers Committee. That letter stated as follows:

A review is being conducted on various pilot program proposals that address possible pathways to permanent residency. We have not received any applications related to th is matter as there is no active pilot project nor has there ever been one. I am unable to speculate on future policy decisions until the results of the review have been fully assessed.

[127] At paragraph 48 of the statement of claim, Mr. Boraks pleads as follows:

48. On February 23, 2018, Minister Hussen sent a letter to the UWC, wherein he stated contrary statements: that the Pilot Project ‘did not exist’, but also that the Pilot Project "was being reviewed", and in fact "never existed". It was at this point, for the first time, that the Minister and his officials made it clear that they would not be proceeding with their announced undertaking and promise to process Pilot Project applicants.

[128] Mr. Boraks also relies on the interlocutory decision of LSO on October 4, 2019. He submits that each and every question raised concerning the pilot project, lobbying, future pilot projects, his fees and financial administration were addressed by the LSO, and the tribunal found that he was correct. In fact, the panel noted:

The Law Society maintains that the pilot project may have been under consideration but was never developed or implemented. It relied on Immigration Minister Hussen’s statement that the pilot project never existed. That statement was made on February 23, 2018, some 14 months after the pilot project was announced. It also relied on statements by various government officials after that date that the program never existed….

[129] The LSO also noted that five clients complained about the Pilot Project. The LSO noted that the “weight of the evidence” does not support the position that the pilot project never existed. That decision was not a final disposition of the complaint against Mr. Boraks which was to be the subject of a disciplinary hearing. As Mr. Boraks surrendered his license to practice law, the disciplinary proceeding did not proceed. Returning to the interim order by the LSO, far from exonerating him, was quite critical of the way he chose to run his business practice and noted that he did so “in a manner that creates a substantial risk of harm to the public and in the administration of justice”. The panel noted: “The public cannot have confidence in the accounting practices of a lawyer who takes their money and fails to account to them for its use, and who flouts the rules designed to protect them.” In fairness to Mr. Boraks, there were other disciplinary issues before the panel aside from the Pilot Project.

[130] As for the impugned stories, in both cases, they report on complaints made by a client of Mr. Boraks’. Both stories present the client’s perspective and Mr. Boraks’ perspective. Both stories reported the client’s complaint in the context of the uncertainty surrounding the Pilot Project and its existence, a discussion that had been fermenting within the Italian and Portuguese community long before the defendants’ stories.

[131] Neither the Global News stories nor the Jornal North News story state as fact that Mr. Boraks did anything wrong. In both cases, Mr. Boraks’ view, stated by himself, that the Pilot Project really existed is conveyed to the readers or viewers. A reader or viewer would not think less of Boraks. The only mention of fraud comes from Mr. Boraks himself. To the extent that any of the stories cast aspersions on Mr. Boraks, it is grounded in the comments themselves of the clients who were complaining.

[132] The Supreme Court underlined in Pointes Protection Association, that the responding party must satisfy the motion judge that there are grounds to believe that its underlying claim is legally tenable and supported by evidence that is reasonably capable of belief such that the claim can be said to have a real prospect of success.

[133] An examination of the statement of claim is contemplated as part of the merits analysis. An action may not be frivolous, and may even be technically valid, but still not pass the requisite threshold of substantial merit: Pointes Protection Association, at para. 47. As Côté J. noted, at para. 48 “While the plaintiff need not definitively demonstrate that its claim is more likely than not to succeed, the claim must nonetheless be sufficiently strong that terminating it at a preliminary stage would undermine the legislature’s objective of ensuring that a plaintiff with a legitimate claim is not unduly deprived of the opportunity to vindicate that claim.” To satisfy the statutory requirement of “substantial merit”, the responding party must satisfy the court that the underlying proceeding “has a real prospect of success”. I am not satisfied based on the pleadings, the record, and the law, that the underlying defamation claims against the Corus defendants and the Jornal North News defendants have a real prospect of success.

[134] Mr. Boraks had deep roots in the Portuguese and Italian community. He pleads that he was a “leading advocate for undocumented trades workers permanent residency issues, in Ontario”. He alleges in his pleadings that he was involved in the establishment of immigration policy. At paragraph 17(g) of his statement of claim, the plaintiff alleges that “[f]rom 1989 to 1991 the plaintiff played a crucial, pro bono, role in the Portuguese community construction union successfully advocated for obtaining 7000 landed immigrant visas for undocumented workers.”

[135] Mr. Boraks further pleads at paragraph 17 (j) and (k) of his statement of claim as follows:

(j) “From 2005 to 2006 the plaintiff served pro bono advocating for undocumented trades workers with then Immigration Minister, Joe Volpe. That advocating came close to landing many undocumented trades workers but failed because an election was called, and Mr. Volpe’s liberal government was defeated.”

(k) from 2006 to 2007, due to the plaintiff’s advocacy efforts with Foreign Affairs, Minister Peter McKay, and Immigration Minister Monte Solberg, agreed with the Portuguese Foreign Minister, to the land 100 of undocumented skilled trades worker clients represented by the plaintiff.

[136] At paragraph 18 of his statement of claim, Mr. Boraks alleges that it was in the capacity of “successful advocate and change-maker, particularly with respect to undocumented trade workers, that the plaintiff set out to change the government policies surrounding granting Permanent Residence status to documented workers. The plaintiff has therefore over the years advocated on behalf of undocumented skilled trades workers, in Ontario, seeking Permanent Residence Status.” Mr. Boraks further pleads that “from 2000, until the present, the plaintiff has been advocating in support of undocumented workers rights, serving as pro bono counsel to the Undocumented Workers Committee (“UWC”).” Mr. Boraks describes his work with the committee in the same paragraph stating: “from 2011 to 2012, as pro bono counsel for the UWC, the plaintiff pushed Ottawa to create separate immigration permanent residency rules for skilled trades workers, including undocumented skilled the trades workers.” Mr. Boraks alleges that his “efforts, in part, resulted, on January 1, 2013, with the Federal government putting into force the Federal Skilled Trades Program (FSTP) Regulations, which included the substituted evaluation provision under s.87.2(4) of the Immigration and Refugee Protection Regulations, to cover undocumented workers….”

[137] Mr. Boraks alleges that the government did not follow the regulations, and as a result “the plaintiff set out to have the government commit to following them.” Mr. Boraks further pleads that “acting as pro bono counsel for the UWC, [he] advocated and litigated, against the Federal government’s refusal to use the FSTP substituted evaluation provision to cover undocumented skilled trades workers. These efforts culminated in the “pilot project”, where the statements and actions of the defendants, with respect to the pilot project, form a basis of the within claim.”

[138] At paragraph 28 of his statement of claim, Mr. Boraks pleads what he alleges is “(t)he history by public officials, which eventually led to the creation of the Pilot Project… commencing in November 2005 with then Minister Volpe and his Ontario counterpart, MPP Mike Collee. For the purpose of brevity, I will focus on the allegations in proximity to what Mr. Boraks alleges was the announcement of the project.

[139] At paragraph 28(f) of the statement of claim, the plaintiff alleges that

In early 2016, the Federal government created a Liberal Party “Caucus Immigration Committee” headed by Defendant, MP Peter Fonseca, under the direction of the immigration minister. The Defendant, MP Francesco Sorbara was actively involved on this Caucus Immigration Committee as well as MPs Sonia Sidhu, Julie Dzerowicz, Bryan May and Alexandra Mendes.

[140] Mr. Boraks pleads at paragraphs 28(i) and (j) of the statement of claim that

28. (i)“On December 22, 2016, Immigration Minister McCallum told the GTA announcement.” Portuguese language press that there would shortly be an undocumented worker policy (j) On December 23, 2016, MP Fonseca called the UWC asking the UWC and 15 GTA trades employers to attend at the Brampton office of the Co-Chair of the Liberal Caucus Committee, MP Sonia Sidhu. At this meeting, MP Fonseca and MP Sidhu announced that they would be working on a Pilot Project (the “Pilot Project”) that would serve as the first step of the government’s plan to address the wider undocumented worker issue.

[141] At paragraph 29, though, he pleads, and not in the alternative, that the creation of the Pilot Project was announced. Mr. Boraks pleads the following with respect to the creation of the Pilot Project on December 23, 2016:

At the December 23, 2016 meeting, which announced the creation of the Pilot Project, MP Fonseca advised those present at the meeting (UWC and Trades Employers) about the initial steps to implement the Pilot Project, as follows:

a) MP Fonseca advised that the UWC was not to promote the Pilot Project in the media or among undocumented workers at large because the Caucus committee required them to limit the initial applicants to a smaller “test” group, as the substitute evaluation procedure, was still in its infancy and required procedural testing;

b) the Pilot Project was implemented on an immediate basis where no further regulatory or other approval procedures would be necessary;

c) processing of applications would commence in the spring of 2016;

d) the Pilot Project would initially be limited to 1000 qualified applicants;

e) initial applicants would only be accepted from the GTA construction sector. If, by April 2016, the initial construction applications were of a high quality, then the program would be opened up to the food service and mechanic sectors;

f) workers who had previously held a work permit would be preferred, however, the Pilot Project was open to applicants who had not previously held a work permit;

g) successful applications would result in the undocumented workers being issued work permits and then being landed.

[142] At paragraph 30 of the statement of claim, Mr. Boraks pleads that:

In early January 2017, MP Fonseca confirmed to the UWC that applications under the Pilot Project were to be delivered to his office and that they would then be relayed to the Minister’s Officers for processing.

[143] At paragraph 32 of the statement of claim, Mr. Boraks pleads that in April 2017, he started to send applications on behalf of food service and mechanic trades workers to MP Fonseca’s office.

[144] At paragraph 38 of the statement of claim, Mr. Boraks pleads that:

“38. Between January 2017 and June 2017, the UWC engaged in a constant flow of correspondence with the Caucus Immigration Committee. The purpose of the correspondence was to assure the proper management of the Pilot Project.

[145] While the court is not permitted to take a deep dive into the evidence, Mr. Boraks must establish on the record that there is substantial merit to the defamation proceeding. As noted by the Supreme Court of Canada, “although the limited record at this stage does not allow for the ultimate adjudication of the issues, it necessarily entails an inquiry that goes beyond the parties’ pleadings to consider the contents of the record”: Pointes Protection Association, at para. 38

[146] On cross examination, Mr. Boraks maintained that Mr. Hussen’s letter signaled the end of the Pilot Project. The letter reads, in part,

A review is being conducted on various pilot programs proposals that address possible pathways to permanent residency. We have not received any applications related to th is matter as there is no active pilot project nor has there ever been one. I am unable to speculate on future policy decisions until the results of the review have been fully assessed. [Emphasis added]

[147] Mr. Hussen is also sued in this lawsuit in his capacity as the former Minister. On this motion, the evidence filed, taken to have been stated, is consistent with the reporting by the moving party defendants.

[148] Mr. Boraks’ pleadings make clear that his position is that there was a Pilot Project in existence after December 2016. He has also admitted, in his pleading, to sending applications to MP Fonseca’s office.

[149] In the result, while the “grounds to believe” standard is lower under section 137.1(4)(a)(i) of the Act, I am satisfied that Mr. Boraks has not satisfied the court that there are grounds to believe that his defamation proceeding has substantial merit, that is to say a real prospect of success.

iv. The moving parties have valid defences in the proceeding

[150] The Corus defendants advance the defences of truth or justification and responsible communication, and reportage, the latter not being a defence in and of itself.

[151] Jornal North News rely on the defences of fair comment, justification and responsible communication.

[152] Mr. Boraks must show that there are “grounds to believe” that the Corus defendants and the Jornal North News defendants have “no valid defence” to his action. To do so, Mr. Boraks must show, on the basis of the record and the law, taking into account the stage of the proceeding, that the defenses put into play do not tend to weigh more in the defendants’ favour. That is to say, that the defences are not legally tenable or supported by evidence that is reasonably capable of belief such that they can be said to have no real prospect of success. Bent v. Platnick, at para. 103; Pointes Protection Association, at paras. 55-60. If the defence is valid, the plaintiff has not met their burden and the underlying claim should be dismissed: Pointes Protection Association, at para. 56-59.

[153] As noted by Côté J. in Pointes Protection Association, at para. 59,

In other words, “substantial merit” and “no valid defence” should be seen as constituent parts of an overall assessment of the prospect of success of the underlying claim.” In my view, the defences advanced by both sets of defendants of justification/truth is legally tenable and supported by evidence that is reasonably capable of belief such that the claim can be said to have a real prospect of success, so too is the defence of responsible communication.

[154] In this case, for the within motion, the Corus defendants advance the defences of truth or justification and responsible communication which they submit the plaintiff cannot establish are “not valid” defences.

i. Truth or Justification

[155] To succeed on this defence, it must be shown that the statement was substantially true. It is not necessary to show that every word was true. A defendant must show the substantial truth of the “sting”, or “main thrust”, of the statement. The defence will fail if the publication in issue is shown to have contained only accurate facts but the sting of the libel is not shown to be true. Bent v. Platnick, at para. 107; Libel and Slander Act, R.S.O. 1990, c. L.12, s. 22.

[156] The court agrees with the moving defendants that, on record, there is substantial truth in the sting of the stories.

[157] Mr. Boraks has named various government actors in the within action claiming that the Pilot Project was announced and operational. All of the governmental defendants deny its existence. For example, the Attorney General of Canada and former Minister Ahmed Hussen plead:

5. These defendants deny that the alleged "Pilot Project" was undertaken, launched or implemented as a "test" project or otherwise, and deny further that any representation was made by the defendants to that effect. The alleged "Pilot Project" does not exist and did not exist at any material time.

[158] Both stories report on Mr. Boraks’ clients’ accusations that he took money from them for a Pilot Project which the Government said did not exist. Mr. Boraks was not labelled by these defendants as a fraud. Mr. Boraks has not produced any evidence in the record to suggest the Pilot Project existed for the period of time that he secured applications from undocumented workers for a fee. Although his statement of claim sets out criteria for the Pilot Project, on cross examination, Mr. Boraks admitted that there was no posting on the Government website, no official publication in the Canada Gazette, and nowhere for people to go to determine the details of the Pilot Project. There is no official statement confirming the Pilot Project, and there was nowhere one could go to get information about submitting an application.

[159] The impugned stories set out the position of all involved players. In the end, a reasonable reader or viewer understands the stories to mean that allegations were made by Mr. Boraks’ clients, who were interviewed, about paying money for an application for a program that the Government denied existed. In my view, the facts are true or substantially true. Reporting on allegations is distinct from reporting that those allegations are true: Silva v. Toronto Star Newspapers Ltd., [1998] 167 D.L.R. (4th) 554, at paras. 42-49; aff’d , [2002] 215 D.L.R. (4th) 77. Justification or “truth” is a complete defence to an action for defamation. In the result, this too, is a valid defence available to both sets of defendants.

ii. Responsible Communication

[160] In Grant, at para 2, Chief Justice McLachlin noted that “if the defenses available to a publisher are too narrowly defined, the result may be ‘libel chill’, undermining freedom of expression and of the press.”

[161] The defence has two components. First, the subject matter of the publication must be a matter of public interest. Second, the publisher must have acted "responsibly" in preparing the story having regard to the following: the seriousness of the allegation; the public importance of the matter; the urgency of the matter; the status and reliability of the source; whether the plaintiff's side of the story was sought and accurately reported; whether the inclusion of the defamatory statement was justifiable; whether the defamatory statement's public interest lay in the fact that it was made rather than its truth; and any other relevant circumstances: Grant, at para. 110-122, 126; Armstrong v. Corus Entertainment Inc., 2018 ONCA 689, 143 O.R. (3d) 54, at para. 28; Kam v. C.B.C., 2021 ONSC 1304, at paras 70-97; Rebel News v. Al Jazeera Media, 2021 ONSC 1035, at paras. 60-69.

[162] Having established above the public interest component, I will explain why the publications are "responsible" and the basis for concluding that there are grounds to believe that the defense of responsible communication is a valid defense available to both sets of defendants.

[163] Both sets of defendants took steps to confirm the accuracy of the complaints made by Mr. Boraks’ clients. Mr. Boraks alleges that there are a host of individuals who should have been contacted. None of those individuals were in a better position than the government officials to confirm whether a Pilot Project existed, as claimed by Mr. Boraks, for undocumented workers.

[164] The accusations were quite serious as it involved allegedly taking money from undocumented workers, whose immigration status was uncertain. Mr. Boraks himself identified these workers as a vulnerable class of individuals. On April 2, 2018, Mr. Romandia emailed Mr. O’Shea to advise him that he had paid thousands of dollars to Mr. Boraks “with the promise of a pilot project to become a permanent resident” but that he was advised by the government that no such Pilot Project program existed, and no application was filed. The matter was of some urgency. By his own admission on cross examination, Mr. Boraks continued to accept applications even after Minister Hussen’s letter and what he understood to be the terminating of the Pilot Project.

[165] In my view, Mr. O’Shea was diligent, thorough and careful in the preparation of the Global News stories. He interviewed or sought comments from various participants. He reviewed the available material. He provided an opportunity to Mr. Boraks to set out his position. He followed up on leads provided to him by Mr. Boraks.

[166] With respect to the Corus defendants, Mr. O’Shea contacted the client Mr. Romandia, who was then interviewed. Mr. Romandia told Mr. O’Shea that Mr. Boraks had told him that he would be able to stay in Canada, in part, as a result of a new "pilot project" for undocumented workers undertaken by the government. Mr. Romandia indicated that he had paid Mr. Boraks $10,000 to assist him with the immigration process but was informed by someone in the government that no such pilot project existed. He received a “removal order” and was to voluntarily leave Canada later in April 2018. He had filed a complaint with the LSO. Mr. O’Shea apparently did some online research and found a video of Mr. Boraks advertising the Pilot Project and his related services. He did not find any confirmation anywhere that the Pilot Project actually existed.

[167] On the following day, April 3, 2018, Mr. O’Shea did an in-person, on-camera interview with Mr. Romandia. Mr. O’Shea sought input from reliable sources. After the interview, he contacted Minister Hussen’s office and spoke with Hursh Jaswal who was, at the time, the director of communications for Minster Hussen. He was advised by Mr. Jaswal that the Pilot Project did not exist. Later that day, Mr. Jaswal confirmed in writing that there was neither a pilot project nor any plans in the works for any such pilot project.

[168] Mr. O’Shea then contacted the provincial Citizenship and Immigration Minister, Laura Albanese. Her press secretary, Sara Anash, advised him that no such program, on the provincial level, existed or was contemplated.

[169] Mr. O’Shea then contacted the Toronto immigration law firm Mamann, Sandaluk & Kingwell LLP and managed to speak to a lawyer, Daniel Mandelbaum. He apparently indicated that he was unaware of any such project, but that he would do some research in an effort to determine whether one existed. He heard from Mandelbaum prior to the April 4, 2018, broadcast. Mandelbaum apparently told him that he could find no evidence of any such program existing. He had apparently carried out some research and asked various other immigration lawyers including two or three partners at his firm who all advised that they had no knowledge of any such program existing.

[170] Before his interview with Mr. Boraks, Mr. O’Shea had spoken to the author of the email, which precipitated his investigation, government officials at the federal and provincial level, and a lawyer practicing in the area of immigration law — all of whom denied the existence of a Pilot Project.

[171] On April 4, 2018, Mr. O’Shea contacted MP Peter Fonseca concerning the alleged Pilot Project and whether his office would have received any applications under such a Pilot Project. Mr. O’Shea received an email from MP Fonseca on April 4, 2018, he confirmed that there was no such pilot project.

[172] Mr. Boraks was interviewed, and his side of the story was presented fairly and accurately. Given the public interest component, the stories were justifiable.

[173] While the Jornal North News story did not carry out as exhaustive an investigation as Mr. O’Shea did, the journalist did interview the client and Mr. Boraks, presenting both sides of the story, and referred to Mr. O’Shea’s reporting on the Pilot Project.

[174] Mr. Boraks claimed that more could have been done by Mr. O’Shea, including reviewing Romandia’s file and the “Pilot Project Documentation”; seeking comment from Manuel Alexandre and Joe Volpe; and seeking confirmation” from Immigration, Refugee and Citizenship Canada as well as the Canada Border Services Agency. On the materials before the court, Mr. O’Shea did review Mr. Romandia’s file. Mr. O’Shea did obtain a comment from Mr. Alexandre, which would not have changed the picture. On cross-examination, Mr. Boraks conceded that had the editors seen Mr. Romandia’s file, it probably would not have made a difference. He admitted on cross examination that there was no such material in his record showing the announcement of the Pilot Project or confirming its existence.

[175] Mr. O’Shea indicates that he made attempts to obtain comment from Mr. Volpe, who was not willing to speak on the phone. It is not clear what evidence Mr. Volpe would have given with respect to the existence of the Pilot Project. He was not a Minister at the time. He swore no affidavit in support of the plaintiff’s responding motion.

[176] As for the suggestion that Mr. O’Shea should have confirmed the Pilot Project with Immigration, Refugee and Citizenship Canada, the Canada Border Services Agency and the RCMP, I note that, on cross-examination, Mr. Boraks was unable to advise what contacting any of these authorities would have accomplished and confirmed.

[177] The defendants have made out the defence of responsible communication putting the defence "in play". Both sides of the story were set out in both cases. Comments from the various players were sought in both cases. Mr. Borak’s side of the story was sought and accurately reported.

[178] Mr. Boraks has not established that there are grounds to believe that the defence of responsible communication advanced by both sets of defendants has no real prospect of success: Pointes Protection Association, at para. 60. That is to say, Mr. Boraks has not satisfied the court that there are grounds to believe, on a basis in the record and the law — taking into account the stage of the proceeding — the defences do not tend to weigh more in favour of the defendants.

[179] As the defences of justification and responsible communication are valid, Mr. Boraks has not met his burden.

v. The weighing of public interest

[180] The onus is on Mr. Boraks to satisfy the court pursuant to s. 137.1(4)(b), which provides that

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.

[181] Mr. Boraks is required to satisfy the court that i) he has suffered harm and ii) that the harm was suffered as a result of the expression. If he does so, the court is called upon to scrutinize what is really going on, and in the end, weigh whether the harm suffered or likely to be suffered by him is so serious that the public interest in permitting the claim to continue outweighs the public interest in protecting the expression in issue.

[182] I am not satisfied, on the record, that Mr. Boraks has discharged his burden. As Mr. Boraks himself acknowledged, there is tremendous public interest in the Pilot Project story in the context of undocumented workers.

[183] The jurisprudence establishes that, at this stage, the harm does not have to be quantified. The harm may be pecuniary or non-pecuniary. The harm must be established on an evidentiary basis. It is the existence of harm that is significant.

[184] In my view, on the record, Mr. Boraks may indeed have suffered some reputational harm. However, it can hardly be said that he suffered serious reputational harm as result of the impugned expressions or stories. By his own admission, Minister Hussen’s letter to the Chair of the Undocumented Workers Committee sparked a debate; everyone was talking; people were wondering whether he was lying or whether the Minister was lying. Other reports preceded the defendants’ stories. In his affidavit, Mr. Boraks references a client leaving him in March 2018 to retain Mamann and later suing for recovery of fees she paid him for the Pilot Project. Mr. Boraks includes articles, which are admittedly hearsay, from O Milenio, a Toronto-based Portuguese language newspaper that Boraks characterizes as popular. It includes articles published in mid-April 2018 of “stories of victims”, and reports on an interview with one of Mr. Boraks’ former undocumented worker clients who describes being “suspicious that something strange was going on” with respect to the Pilot Project. That client stated that she made a complaint about Mr. Boraks because “since 2012, he has never been honest with us”. In another O Milenio article dated April 13, 2018, it is reported that a large number of undocumented workers “claim to have been deceived and scammed” by Mr. Boraks. In what Mr. Boraks admits is a reference to him, the article concludes as follows:

In one way or another, the intention of the project, it seems, has existed. However, it did not bear practical fruit and never passed the law. Even so and under the pretext of its existence, there were those who made money and deceived many workers.

[185] In my view, Mr. Boraks has not established that any drop in billings is due to Mr. O’Shea’s article. As the Jornal News defendants point out, during the May 29, 2018 interview, Mr. Boraks indicated that he had retained 95% of his clients despite being called “a crook” by Mr. O’Shea. He himself indicated that another immigration lawyer was poaching his clients before Mr. O’Shea’s article was even on the horizon. Other reporting preceded Mr. O’Shea’s article and followed, including news stories and broadcasts by Omni, Nossa TV and O Milenio.

[186] Mr. Boraks submits that the Law Society’s investigation process is a matter of public record. He notes that Law Society did not allow him take on new clients and his account was frozen. He indicated that between the April 2018 Global News story until the final Law Society Order in January 2021, he was presumed by clients and the community to be the criminal who orchestrated a massive fraud.

[187] I see very negligible correlation between Mr. O’Shea’s article and Law Society restrictions placed on Mr. Boraks’ license to practice in June 2019 and October 2019. The first order restricted his ability to take on any new clients and dispense any monies from his trust account, among other things. The second order in October 2019 imposed additional restrictions pending the merit determination. Mr. Boraks was unable to practice without being supervised by another licensee, approved by the LSO. The LSO explained the reasons for the restriction on his practice which had nothing to do with the Pilot Project, noting, in part “since 2012, he has chosen a business practice that flouts both the Rules and his obligations to scrupulously account for client trust funds. Since 2012, he has transferred over $3 million in trust funds to his general account without rendering any accounts to his clients.”

[188] The record suggests, therefore, that Mr. Boraks’ drop in billings had little to do with the challenged expression. Mr. Boraks argues that there was a clear and immediate drop in billings following the April 4th, 2018, publication and broadcast by Mr. O'Shea. He produced tax returns, as part of a production brief without an affidavit. Mr. Boraks maintains that he has provided evidence of financial loss to his law practice prior to resigning. The Supreme Court noted in Pointes Protection Association, at para. 71, that a damages brief is not necessary, “but the plaintiff would still have to support a claim for special damages.” In this case, this would require proper evidence in compliance with the rules relating to affidavits and exhibit evidence, and not an undertakings brief, absent agreement of the parties on the content of the documents. I also note that Mr. Boraks has since retired from practicing law with no evidence of his retirement being related to the impugned expressions.

[189] In any event, given my comments with respect to the merits of the defamation claims against these defendants (and the validity of their defences), and the lack of any evidence put forward to date to support Mr. Boraks’ claim of the Pilot Project ever existing, on the record before me, the public interest in permitting the expression is outweighed by any harm to Mr. Boraks in dismissing the claims. It bears repeating that Mr. Boraks is a self-described “leading advocate for undocumented trades workers permanent residency issues, in Ontario.”

[190] Even after the Government said there was no program, he continued, by his own admission, to accept applications. As he himself noted in his affidavit, “[t]he Law Society had no choice but to get involved. The Law Society could allow neither the perception nor the reality that I had breached the public trust, especially regarding vulnerable undocumented workers.” In the face of the unanimous position of the government, at the federal and provincial level, to Mr. O’Shea that the Pilot Project did not exist, the public interest in permitting the media to report on the stories far outweighs any harm to Mr. Boraks who continues to insist that the Pilot Project existed.

XII. Conclusion

[191] The claims against these defendants are therefore dismissed.

[192] Neither the Corus defendants nor the Jornal North News defendants addressed the claim for damages being sought under s. 137(9) of the Act in their materials, including in its factum. The relief is identified in their notices of motion.

[193] Therefore, on the evidence, there is insufficient information for me to determine if Mr. Boraks brought the proceeding in bad faith or an improper purpose.

XIII. Costs

[194] If the parties are not able to agree on costs, the Corus defendants and the Jornal North News defendants may deliver Costs submissions within twenty days of the publication date of these Reasons. The plaintiff may deliver Costs submissions within twenty days thereafter.

A.P. Ramsay J.

Released: August 1, 2023

APPENDIX A

APPENDIX B

“In our previous edition of the “North News” of 1-15 June, we published a story about the treatment of “illegal immigrants” by the office of the lawyer Richard Boracks of the city of Mississauga. To the best of our ability with this article our intention was to advise the public of the practices some individuals are resorting to in order to procure services to the most vulnerable people trying to get a status in Canada. This was our intention and only this, and the said article has nothing to do with the character or the professional standards or ethical practices of Mr. Richard Boracks or his staff. It is therefore that the intention of the Editor in chief and the writer of the article was, by any means, not to create wrong impressions of “biased, slanderous and defamatory” against any person involved. It is therefore that we regret any misunderstanding my caused our article or translation of the meaning of the article and we express our apologies to any individual for any inconvenience that may have caused the article, as part of the said operation.”

June 16, 2018 Edition #99 - Clarification

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

RICHARD BORAKS Plaintiff

– and –

AHMED HUSSEN (MINISTER OF IMMIGRATION REFUGEES AND CITIZENSHIP), PETER FONSECA, FRANCESCO SORBARA, THE ATTORNEY GENERAL OF CANADA, STEPHEN GREEN, SEAN O’SHEA, GLOBAL NEWS, CORUS ENTERTAINMENT, JOEL SANDALUK, GUIDY MAMANN, DENIS BUEDES BRITO, SABRINA QUARINIRI, JORNAL NORTH NEWS Respondents

REASONS FOR JUDGMENT

A.P. Ramsay J.

Released: August 1, 2023

[1] [1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at para. 2](https://www.canlii.org/en/ca/scc/doc/2020/2020scc22/2020scc22.html#par2)