BRACEBRIDGE COURT FILE NO.: CV-22-153-00 DATE: 20231017 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Eleanor Coulson and Patrick Coulson Moving Parties/Defendants by Counterclaim – and – Leonard Alexander Ojha, 1964856 Ontario Inc., Alexander Muskoka (Gravenhurst) Inc. and Alexander Muskoka Operations (Gravenhurst), Respondents/Plaintiffs by Counterclaim
Counsel: Mark Vernon, Counsel, for the Moving Parties/Defendants by Counterclaim Michael Lesage, Counsel, for the Respondents/Plaintiffs by Counterclaim
HEARD: September 28, 2023
REASONS FOR DECISION
HEALEY J.:
Nature of the Motion
[1] The plaintiffs, Eleanor and Patrick Coulson, bring this motion pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) to dismiss the counterclaim of the defendant, Alexander Muskoka (Gravenhurst) Inc. (“AM Gravenhurst”).
[2] The Coulsons assert that the counterclaim is a proceeding that falls within the rubric of those that have come to be known as Strategic Lawsuits Against Public Participation (“SLAPP”). They allege that AM Gravenhurst is a well-funded developer who brings its counterclaim to silence their opposition to the development of a retirement residence on property adjacent to their own.
[3] AM Gravenhurst asserts that the counterclaim is a valid proceeding for damages arising out of the Coulsons’ breach of Minutes of Settlement reached by the parties in February 2017 with respect to this development.
Background Facts
[4] The Coulsons own a single-family residence located at 505 George Street, where they have lived for the last eighteen years. Their property sits on a treed embankment overlooking Muskoka Bay.
[5] Leonard and Marie Ojha purchased the adjacent property at 520 Isaac Street in 2014, after which they sought, and obtained approval for, zoning by-law and official plan amendments from the Town of Gravenhurst on May 24, 2016. Their development is in the process of becoming the Alexander Muskoka Retirement Facility, anticipated to have approximately 101 residential units, roughly one-third being allocated to affordable housing for seniors.
[6] When the zoning amendment was obtained in May 2016, it permitted a maximum of 121 bedrooms, 47 parking spaces and a maximum height of 12.5 m.
[7] At a public Town Council meeting held on December 15, 2015, Eleanor Coulson’s objections to the development were recorded as being its effect on sightlines, impact of tree removal and height of the proposed structure. The Minutes note that the Town had received letters of objection from several neighbouring property owners. The letters included comments regarding character and visual impacts, environment, construction impacts, site design, roads and servicing infrastructure, tourism impacts, market need and lack of sufficient information. The Coulsons’ affidavit attaches letters and emails delivered to the Town expressing concerns from seventeen citizens, not including themselves. Three letters of support were received from community members. The evidence indicates that following that meeting, at which the Council deferred its decision pending further study, additional correspondence about the development was received by the Town, including from the Municipal Heritage Committee.
[8] A petition in opposition to the development was also delivered to the Town in or around January 2016 containing 158 signatures. The generic reasons for the opposition were listed as: environmental, unit density, the physical and aesthetic “fit”, degradation of property values, vehicular flow and parking, sightlines and building height, egress for emergency evacuation and parking.
[9] The Coulsons appealed the approvals to the Ontario Municipal Board (“OMB”) and retained a planner to assist them. The reasons provided for the appeal included: “concern over the number of units given the small size of the site; the extensive width of the building as it stretches from lot line to lot line; no plan for vegetation protection.” In a PowerPoint presentation developed for the OMB hearing, the Coulsons asserted that:
…it is reasonable to require elevations, detailed Site Plan, Tree Inventory and Tree Preservation Plan to be completed prior to considering a development that would significantly increase the scale and density of development permitted on this property and would appear to remove all trees on the north, south and eastern portions of the site.
[10] One of the other PowerPoint slides, titled ‘Consideration of Tree Removal Impact’, which was overlaid on a then-existing site plan, noted anticipated tree removal along the entire east, north and south portions of the development site. It further indicated that a Tree Inventory and Tree Preservation Plan would serve two functions: identify important trees to be protected and limit the impact of the building by protection (sic) trees.
[11] In February 2017, the Coulsons and Leonard Ojha (through his development corporation 1964856 Ontario Inc.) came to an agreement through their respective planners to resolve the OMB appeal. Minutes of Settlement were signed. One of the concessions made by Mr. Ojha was to reduce the density of the building from 121 units to approximately 101. His evidence was that this concession, which would reduce revenue, was “the price of peace”.
[12] Two paragraphs in the Minutes are relevant to this motion:
A fence shall be installed with the minimum height of 1.2 m (4ft) constructed parallel to the lot line abutting the Coulson lot in a location to be identified by a certified arborist pursuant to a tree preservation plan that protects the trees on the Coulson lot and on the lot line separating the Coulson lot and 520 Issac (sic) Street. The style of materials used in the fence construction shall be at the discretion of 1964856 Ontario Inc., as set out in the Site Plan dated February 10, 2017, as attached hereto.
Coulson agrees upon execution of these Minutes of Settlement that she shall not oppose directly or indirectly the terms of the development as set out in these Minutes of Settlement, provided the Site Plan and Building Elevation drawings are in accordance with Schedule A and Schedule B, dated February 10, 2017, attached hereto. Coulson is permitted to review the Site Plan submission and provide comments.
[13] The site plan and building elevation drawings, as they then existed, were attached as Schedules A and B to the Minutes. The site plan (hereafter the “2017 site plan”) indicates that a fence was to be erected “parallel to the lot line abutting the Coulson lot in a location to be identified by a certified arborist pursuant to a tree preservation plan”. Immediately to the south of that fence, the plan indicates that there was to be a “1.0 m tall planting buffer” in front of the parking spaces. The elevation drawings showed an 11 m tall building from grade. Duncan Ross, the architect who created the 2017 site plan and elevation drawing, has deposed that the planting buffer was to be 2.579 m wide, and anticipated to contain shrubs that were 1.0 m tall.
[14] The parties all understood that the 2017 site plan was likely to change up until such time that the Town gave site plan approval. Paragraph 9 contemplates this, expressly permitting the Coulsons to review any site plan submissions and provide comments.
[15] The purpose of the fence is made clear in the exchange of correspondence during the negotiations leading up to signing the Minutes. Mrs. Coulson wrote:
The purpose of the fence identified in the original settlement offer is not to demarcate the lot line, but to ensure trees on the Coulson property are protected.… A condition of settlement would be a fence installed parallel to the east property line in a location identified by a certified arborist (as part of the tree preservation plan that would be required to protect the trees on the appellant’s lands)…
Responding directly to that comment, Mr. Ojha wrote: “Agreed. The fence will be detailed on the site plan and the landscape plan.”
[16] Mrs. Coulson’s evidence on cross-examination is that the main purpose of paragraph 6 of the Minutes, and the Coulsons’ “main goal” was “to protect the trees on our lot line and on our property”.
[17] Mr. Ojha admitted at his cross-examination on August 18, 2023 that the fence has never been installed. His evidence is that he did not agree to obtain a tree preservation plan; he agreed only to protect certain of the Coulson’s trees to the extent possible. He believes that he went above and beyond his obligations by having an arborist on site during excavation, in an effort to build goodwill. His states that he did not agree to make modifications to the 2017 site plan to accommodate any trees, or to permit existing roots and branches to continue to encroach on his property.
[18] In February 2019, 520 Isaac Street was transferred from Leonard and Marie Ojha to AM Gravenhurst. Mr. Ojha acknowledges that AM Gravenhurst is bound by the Minutes of Settlement as the successor corporation to 1964856 Ontario Inc.
[19] Mr. Ojha took steps in August and September 2019 to consult and obtain opinions from two arborists with respect to the placement and design of a fence along the common lot line. The resulting letters, exhibits to Mr. Ojha’s affidavit, indicate that the focus of these investigations was preserving the health of the tree vegetation along the property line.
[20] The Coulson’s also hired arborists, Davey Resource Group, to do an inventory of the trees on their property and on the boundary line, and to recommend tree protection fencing distances for preservation during future construction.
[21] The Town held a Planning Council meeting on September 24, 2019. Mrs. Coulson attended, and it is her evidence that she objected to the site plan being presented prior to a tree preservation plan. On her cross-examination she was very clear that she was not objecting to the development itself, but rather, to it being approved before a tree preservation plan had been completed. She presented to Council both the Minutes of Settlement and the Davey Tree Plan that inventoried the trees on her property and the critical root zones of the trees.
[22] In October 2019, the Coulsons’ former lawyer delivered a letter to Mr. Ojha reminding him that they were awaiting a tree preservation plan from him and expressing their ongoing concern for potential damage to the trees.
[23] The Town and AM Gravenhurst signed a Site Plan Agreement on November 25, 2021 for the development to go forward in accordance with a site plan prepared by Passive House 43 Architecture dated November 2, 2021 (the “2021 site plan”). A condition of the Site Plan Agreement was for AM Gravenhurst to maintain the landscaped areas as indicated on the landscape plan dated November 2, 2021.
[24] The 2021 site plan provides for the same planting buffer and fence as the 2017 site plan, and contains the following note:
As per item #6 from Minutes of Settlement, Agreement PL160851, a certified arborist is to be retained to identify location of fence and protection requirements for trees on neighboring property.
These same requirements are found on the landscape plan.
[25] In March 2022, Chris Touesnard of Greystone Project Management stepped into the role of project manager for the development. In May 2022, Mr. Touesnard was informed by Mrs. Coulson of the Minutes of Settlement and obtained a copy from Mr. Ojha. He then immediately began a search for a certified arborist to prepare a tree preservation plan for the trees on the Coulsons’ property and the boundary line.
[26] In June 2022, Mr. Touesnard retained Terrastory to prepare a Tree Preservation Plan. In the meantime, AM Gravenhurst began construction of the retirement residence in the spring of 2022, including excavation along the property boundary, with no tree preservation plan having been completed nor any fence installed to protect the trees on the boundary line and on the Coulsons’ property.
[27] In Terrastory’s report dated September 15, 2022, Tristan Knight, an ISA-certified arborist and senior ecologist, was of the view that site assessments performed on July 29 and August 23, 2022 revealed damage to the roots of the shared trees and neighbouring trees on the Coulsons’ property from the excavations.
[28] In a second report dated September 19, 2022, Mr. Knight confirmed that a total of twenty-eight trees that were either shared with the Coulson property or located entirely on the Coulson property were recommended for removal, subject to the Coulsons’ approval. The trees were damaged, in some cases severely, by ongoing construction works. He recommended that no further impacts to shared or neighbouring trees occur until the matters at hand were resolved.
[29] The Coulsons obtained their own arborist opinion from Davey Resource Group. During its October 14, 2022 inspection, their ISA-certified arborist also found that excavation had resulted in moderate to severe injury to fifteen of the Coulsons’ trees, and minor injury to eight others. Additionally, six trees that had been part of an original assessment done by them in 2019 that appeared to have been entirely on the Coulsons’ property or the property boundary had since been removed. They measured that excavation had occurred to a depth of over 2 metres at a distance of approximately 0.5 to 1.0 m from the property line.
[30] In a follow-up inspection on April 4, 2023, Davey Resource Group found further damage and removal of an additional four trees that had been assessed as belonging to the Coulsons or on the property boundary, which had been removed without the Coulsons’ consent.
[31] In the meantime, on September 28, 2022 a complaint was made to the Town by or on behalf of AM Gravenhurst, which stated:
We have commissioned a professional arborist who has identified 28 trees that are either dead, or dying that pose a safety risk and need to be removed. Some of the identified trees are [redacted] Eleanor and Patrick Coulson who live on 505 George Street…
[32] This complaint resulted in the Town issuing a Property Standards Order against the Coulsons, requiring them to remove or trim at least fourteen trees on their property or the boundary. The Coulsons successfully appealed the Property Standards Order.
[33] The development has received mortgage funding of over $29M from Canada Mortgage Housing Corporation, the District Municipality of Muskoka, and Muskoka Community Futures Development Corporation. The District Municipality of Muskoka passed a by-law on May 17, 2021 that authorized it to enter into an agreement with AM Gravenhurst for the provision of six affordable rent units in the development in exchange for $480,000 in funding.
[34] The evidence filed by the Coulsons indicates that the development has been the subject of media coverage and comment as recently as 2022. However, no evidence was provided by the Coulsons that any members of the public had expressed an interest in the trees on the shared property line, or on their property, or the retaining wall. On cross-examination Mr. Coulson confirmed that he could not provide the names of any person who had expressed an interest in these particular topics.
[35] Mr. Coulson was also asked about the basis of the plaintiffs’ damage claim, beyond the damage to the trees, and said: “The building has taken our view away. The building has taken the price of our house down. Noise, like pollution. Like we got sixty-one windows looking back in at us at the nighttime. So, it’s not private anymore. The list goes on.”
The Pleadings
[36] The Coulsons issued their Statement of Claim on November 30, 2022 under the simplified procedure. The claim is entirely focused on the damage to the trees caused by the excavation and development work being done without a tree preservation plan, which the Coulsons allege was required under the Minutes of Settlement. The claim seeks, in addition to declaratory and injunctive relief, damages for breach of contract, breach of s. 10 of the Forestry Act, R.S.O. 1990, c. F.26, and aggravated and punitive damages.
[37] In their Counterclaim, AM Gravenhurst seeks damages for breach of contract in an amount to be particularized prior to trial. The pleading asserts that the Coulsons have breached and continue to breach paragraph 9 of the Minutes of Settlement. At paragraph 72 of the pleading, AM Gravenhurst sets out the particulars of the alleged conduct engaged in by the Coulsons to oppose the development and cause delay in the construction, causing the cost of the development to increase.
[38] The allegations of wrongful conduct made in the counterclaim arising from the Coulsons’ expressions are:
(a) objecting to a proposed sail roof design; (b) opposing the site plan application before the Town Planning Council on September 24, 2019; (c) removing survey stakes marking the property boundary; (d) claiming that AM Gravenhurst was not abiding by approved building setbacks, specifically challenging whether the footings along the north of the building were set back sufficiently from the property line; (e) complaining to the Chief Building Official (“CBO”) about the construction, specifically the building of a retaining wall, urging the CBO to reconsider his decision to permit construction of the retaining wall and interfering with the concrete pouring and digging required to build the retaining wall; and (f) refusing to consent to the removal of boundary trees required to install the retaining wall.
[39] In their Reply and Defence to Counterclaim, in response to the allegation that they have breached the Minutes of Settlement, the Coulsons plead: “Any of the Plaintiffs’ submissions with respect to the development were made for the purpose of ensuring compliance with the Minutes of Settlement and/or protection of their private property rights…” Paragraph 7 pleads “the Defendants’ proposal for a very large commercial building immediately adjacent to their property has had and will have a substantial impact on their property”. Paragraph 9 pleads that “a primary concern of the Plaintiffs with respect to this development was the maintenance of a buffer of trees between their house and the development. This buffer was to be ensured through the protection of the existing trees on their lot and their property boundary.”
[40] The entirety of the Reply and Defence to Counterclaim is focused on the trees and the Coulsons’ allegations related to AM Gravenhurst’s obligations pursuant to the Minutes.
Issue to be Decided
[41] The issue to be decided is whether an application of the multi-part legislative test set out in s. 137.1(3) and (4) of the CJA should result in a dismissal of the counterclaim.
[42] The threshold burden is on the Coulsons to prove, on a balance of probabilities, that the impugned expression relates to a matter of public interest. The onus then shifts to AM Gravenhurst to establish, on the lesser burden of proof, “grounds to believe”, the following three factors: 1) the proceeding has substantial merit; 2) the defendant has no valid defence; and 3) the public interest in permitting the proceeding outweighs the public interest in protecting the expression.
Section 137.1
[43] As a preliminary matter, there is no debate in the law that the court’s jurisdiction to dismiss a proceeding under s. 137.1 of the CJA extends to a counterclaim: See Boyer v. Callidus Capital Corporation, 2023 ONCA 233, in which the Court of Appeal granted an appeal of a decision dismissing a motion under s. 137.1 in relation to a counterclaim.
Section 137.1(3)
[44] Under s. 137.1(3), the burden is on the Coulsons as moving parties to show two things, on a balance of probabilities:
(a) That the proceeding arises from an expression made by them; and (b) That the expression relates to a matter of public interest.
[45] If the Coulsons are unable to satisfy the court on either of these threshold issues, their motion must be dismissed.
[46] AM Gravenhurst does not dispute that their Counterclaim arises from various “expressions”, as that term is defined in s. 137.1(2) of the CJA. The counterclaim itself, along with the evidence filed by AM Gravenhurst, establishes that the basis of its counterclaim are allegations that the Coulsons have verbalized and demonstrated their opposition to the development project after signing the Minutes. Particularly, as set out in paragraph 21 of AM Gravenhurst’s factum, it is alleged that the Coulsons objected to the height of the proposed roof, opposed the development before the Town Planning Council on September 24, 2019, complained to the Town with regard to a retaining wall, delayed removal of trees along the boundary line and consequently delayed the installation of the retaining wall, removed survey stakes, and challenged whether the footings along the north of the building were set back far enough from the property line.
[47] These types of verbal and nonverbal communications meet the expansive definition of “expression” contained in the statute. There is a clear nexus between the expressions and the Counterclaim.
[48] However, AM Gravenhurst takes the position that the Coulsons’ expression does not relate to a matter of public interest. It submits that the Minutes of Settlement and the subsequent litigation between the parties is an entirely private dispute arising from the parties’ personal business dealings and/or relating to trees privately owned by the Coulsons or located along the shared property line.
[49] Accordingly, the first issue to be decided is whether the impugned expressions made by the Coulsons relate to a matter of public interest.
The Law (s. 137.1(3))
[50] The leading case is 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22. Delivering the judgment of the Court, Coté J. stated, at para. 26, that the phrase “relates to a matter of public interest” should be given a broad and liberal interpretation, consistent with the legislative purpose of s. 137.1(3). That legislative purpose is to “circumscribe proceedings that adversely affect expression made in relation to matters of public interest, in order to protect that expression and safeguard the fundamental value that is public participation in democracy”: para. 30.
[51] In considering the question of how public interest in a matter is to be established, the Court referenced its earlier decision in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640. The expression must be assessed “as a whole”, and the question to be asked is whether “some segment of the community would have a genuine interest in receiving information on the subject”. The Court noted that the public has a genuine stake in knowing about many matters that range across a variety of topics: Pointes, at para. 27. However, the Court made an important distinction between expression that relates to a matter of public interest and expression that makes reference to something of public interest, or to a matter about which the public is merely curious. Only the former will meet the threshold burden under s. 137.1(3): para. 29.
[52] In Grant, the Court clarified that the statement must refer to an issue “about which the public has some substantial concern because it affects the welfare of its citizens, or one to which considerable public notoriety or controversy has attached”: para. 105.
[53] At para. 30 of Pointes, Coté J. summarized:
Ultimately, the inquiry is a contextual one that is fundamentally asking what the expression is really about. The animating purpose of s. 137.1 should not be forgotten: s. 137.1 was enacted to circumscribe proceedings that adversely affect expression made in relation to matters of public interest, in order to protect that expression and safeguard the fundamental value that is public participation in democracy. If the bar is set too high at s. 137.1(3), the motion judge will never reach the crux of the inquiry that lies in the weighing exercise at s. 137.1(4) (b). Thus, in light of the legislative purpose and background of s. 137.1, it is important to interpret an “expression” that “relates to a matter of public interest” in a generous and expansive fashion.
[54] A motions judge is not to consider the merits of the expression in assessing the question of public interests, or the motivations of the individual from whom it emanates: Pointes at para. 28.
[55] There are some similarities between Pointes and the case before me. The Pointes Protection Association (“PPA”) was a not-for-profit corporation created to provide a coordinated opposition, on environmental grounds, to a development proposed by 1704604 Ontario Ltd. in Sault Ste. Marie. The developer and the PPA reached Minutes of Settlement that settled a pending judicial review of the local conservation authority’s approval of the development. However, City Council had rejected 170 Ontario’s application, with an appeal pending before the OMB at the time that the Minutes were signed. Like the Minutes in this case, the Minutes signed by the parties in Pointes imposed limits on the PPA’s future conduct before the OMB and any other subsequent legal proceedings.
[56] At the OMB hearing, in alleged contravention of the Minutes, the PPA’s president gave testimony about the environmental impacts of the proposed development. The OMB dismissed the appeal, and 170 Ontario initiated a breach of contract action against the PPA. The PPA brought a motion under s. 137.1 of the CJA to have the action dismissed.
[57] In reviewing whether the testimony in question related to a matter of public interest, the Court agreed that the record supported such a finding: para. 100. The testimony focused on the environmental impact of a proposed private development, and a large group of residents and voters were deeply invested in the ecological consequences of the development. There was extensive evidence in the record concerning the broad local media coverage of the development proposal, as well as the proceeding before the conservation authority, the City Council and the OMB. It was a matter that affected “people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others”, citing Lording Denning in London Artists Ltd. v. Littler (1986), [1989], 2 All E.R. 193 (Eng. C.A.), at p. 198.
[58] The Ontario Court of Appeal has subsequently dealt with the phrase “relates to a matter of public interest” in several cases.
[59] In Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, the plaintiff lawyers started a defamation action against the defendant occupational therapy firm after the defendant’s president stood on the street outside the law firm’s office holding signs declaring that the plaintiffs were not paying for services provided by the defendants. The defendants appealed the motion judge’s dismissal of its motion under s. 137.1 of the CJA, arguing that the motions judge erred in finding that the appellants’ expression did not relate to a matter of public interest. The decision of the motion judge was upheld on appeal. At para. 20, the court stated: “The question at the heart of s. 137.1(3) is this: Understood in its context, what is the expression really about?” Applying the test in Pointes, the Court stated that the expression at issue was really about a private commercial dispute between the parties. Citing the guidance from Pointes, at para. 29, that “expression that simply makes reference to something of public interest” does not attract the statute’s protection, the Court in Sokoloff held that even though the expression touched on the ethical conduct of an individual lawyer, it did not inevitably relate to the public’s interest in the ethical conduct of lawyers: paras. 31-33.
[60] In Grist v. TruGrp Inc., 2021 ONCA 309, the appellants appealed the dismissal of their defamation action under s. 137.1 of the CJA. The lawsuit arose out of the respondents’ inclusion of a statement of claim from a discontinued action that contained allegedly defamatory statements about the appellants in its response to an Ontario Labour Relations Board application. The respondents took the position that the impugned expressions in the statement of claim related to a matter of public interest because they spoke to the appellants’ pattern of using litigation to gain an economic advantage over competitors and to affect the union certification process. Citing Sokoloff, the Court in Grist stated that “the resolution of purely private disputes between more or less equals – disputes that have no immediate bearing on the rights or obligations of others – can seldom be a matter of public interest: para. 19. Like in Sokoloff, the Court found that the respondents’ expression was primarily a private dispute, even if activity that unfairly reduces competition is, generally, a matter of public interest, and so the respondents’ s. 137 motion failed at the threshold stage.
[61] Similarly, a Facebook post that criticized and warned others about the plaintiff’s business practices did not relate to a matter of public interest, as the post was really about missing delivery dates and not honouring a refund: Dent-X Canada v. Houde, 2022 ONCA 414. Referencing both Pointes and Sokoloff, the court again gave the reminder that “merely referring to something of public interest is not the same as relating to a matter of public interest”: para. 10.
[62] Another case in which the court explicitly grappled with the issue of whether an expression qualified as a matter of public interest within the meaning of the statute is Safavi-Naini v. Rubin Thomlinson LLP, 2023 ONCA 86. In that case the court upheld the dismissal of a defamation claim brought by the plaintiff against the law firm hired to investigate her workplace and sexual harassment complaints. The plaintiff was a medical resident at the Northern Ontario School of Medicine (“NOSM”), whose complaints were directed against a faculty member and the director of the school’s internal medicine program. The Court agreed that the executive summaries produced by the defendants from their investigation engaged the public interest not simply because of the subject matter of sexual and workplace harassment, but because of the nature of NOSM as an educational institution, the media attention garnered, and public safety concerns arising from the plaintiff’s allegations about potential risk to patients; paras. 19-20. The concern for patient safety in a public institution was not, the court held, a private matter: para. 24.
[63] Counsel for the plaintiffs relies on three additional cases: Thatcher-Craig v. Clearview (Township), 2021 ONSC 7352, overturned in part 2023 ONCA 96, Bradford Travel and Cruises Ltd. v. Viveiros, 2019 ONSC 4587, and Hotspot Auto Parts v. Thompson, 2022 ONSC 3637.
[64] In Thatcher-Craig, the motion judge held that the expressions were related to a matter of public interest, a conclusion with which the Court of Appeal expressly agreed. The defendant Township posted public comments and letters about the plaintiff’s site plan application on their website. The plaintiff commenced an action for defamation, negligence and breach of fiduciary duty. The Township sought, unsuccessfully, to have the action dismissed under s. 137.1 of the CJA.
[65] In concluding that the impugned comments from members of the public related to a matter of public interest, the motion judge pointed to the fact that the current and proposed use of the plaintiff’s property was the subject of ongoing public concern, commented upon in a newspaper article. He concluded that members of the community have an interest in issues related to municipal planning and permitted land uses, and the Township has an interest in maintaining an open and transparent planning process. These interests extend to significant issues of safety, comfort, convenience and fair enjoyment of property, and are issues that members of the public would have a genuine interest in knowing about and over which there exists a democratic interest in fostering wide-ranging debate.
[66] In Bradford Travel, the defendants sought an order dismissing the plaintiff’s defamation action under s. 137.1. The defendant, a former employee, posted derogatory commentary about the plaintiff’s business reputation and practices on a local Facebook group. The motion judge concluded that the Facebook postings addressed an issue of public interest. He reasoned that some members of the public will have an interest in knowing something about the companies that offer them services, such that a company’s business practices, the conduct of its management and its activities in the community which have public significance. I note that this reasoning stands in contradiction to that in Dent-X Canada, where, despite public postings being about business practices, the Court of Appeal concluded that the public interest test was not met.
[67] In Hotspot Auto Parts, the allegedly defamatory comments were made by an elected councillor against the plaintiff business at a meeting of Council. The comments were found to relate to a matter of public interest because they were made by a city councillor during a public municipal council meeting in response to a deputation made by the local Legion, a community service organization. The motion judge decided that members of the Legion and other members of the public have a genuine interest in receiving information on the topic. Also, some of the impugned comments were with respect to whether the plaintiff complied with City by-laws, an issue in which the public has a genuine interest.
Analysis
[68] The Coulsons point out that, other than the allegation regarding removal of survey stakes, the allegations against them are in respect of expressions they are alleged to have made to the Town of Gravenhurst Council, the Chief Building Official, and to AM Gravenhurst or its consultants. They submit that the expressions at issue in AM Gravenhurst’s counterclaim relate to a matter of public interest in that:
(a) They were made about a large retirement home development on the shores of Muskoka Bay; (b) The principal of AM Gravenhurst describes his development as a matter of public interest; (c) There has been media attention with respect to AM Gravenhurst’s development; (d) Various individuals/citizens and government agencies had/have an interest in the progress of AM Gravenhurst’s development; (e) AM Gravenhurst’s development is partially funded by tens of millions of dollars in public funding; (f) The manner in which a large developer funded by taxpayers is treating its neighbours is a matter of public interest; (g) The public will have access to the retirement home when it is completed and will be parking only feet away from the retaining wall and trees at issue in this litigation; (h) Some of the expressions were made at Town of Gravenhurst Council meeting open to the public; (i) The expressions relate primarily to the preservation of trees at a time when there is increasing recognition of the importance of preserving the natural environment; (j) Some of the impugned expressions were with respect to whether AM Gravenhurst was compliant with Town zoning by-laws and/or the Ontario Building Code, the latter potentially engaging an issue of public safety; and (k) The impugned expressions were related to Minutes of Settlement that resolved an OMB proceeding (a public interest tribunal) and there is a public interest in whether or not parties will be required to adhere to settlement agreements, generally, and especially in the context at hand.
[69] With certainty, the public has an interest in the development of a retirement home within this community, especially a publicly funded development. These interests, as shown by the public involvement, participation in the Council meetings and media coverage, range from aesthetics, environmental impacts, construction impacts, site design, roads and servicing infrastructure, tourism impacts, and market needs. There is a public interest in protecting the ability of residents to participate in the land use planning process in their community without fear of reprisal or litigation. There is a public interest in the conduct of business owners, especially where they have been provided with public funding. And there will always be a public interest in ensuring Ontario Building Code and zoning by-law compliance by developers, particularly where housing of a vulnerable and aging population is concerned.
[70] However, a contextual review of the pleadings and the record reveals that what these impugned expressions are really about is the interaction between AG Gravenhust and the Coulsons as private, neighbouring landowners. The expressions made following the Minutes of Settlement were focused on the impacts of this development on the Coulsons’ property, particularly their trees. The expressions were made within the context of the Coulsons requesting compliance with the term in the Minutes that required a tree preservation plan, which did not impact on the larger issues relating to this development that were of concern to the public. The tree preservation plan was included in the Minutes for the purpose of protecting the Coulson’s private property interests.
[71] Unlike Pointes, the record does not support the conclusion that the expressions made by the Coulsons were representative of the public interest shown in this development. Nor was the media attention focused on the Coulsons’ concerns about their sightlines, property boundaries and trees.
[72] An examination of the evidence surrounding the impugned expressions objectively shows that each was made in the context of the Coulsons’ stated main goal of ensuring that the tree preservation plan was in place and that their trees were protected, interests that were not specifically part of the larger public concerns surrounding this development.
Objections to Roof Design
[73] This category of expression arises from comments allegedly made by Mrs. Coulson at a July 30, 2019 meeting with AM Gravenhurst’s planner, and Mr. Ojha, and from comments made by the Coulsons at a Town Council meeting on September 24, 2019.
[74] Presented with the elevation drawings dated July 25, 2019 that showed a sail roof, Mrs. Coulson’s reaction was to be concerned that it did not comply with the height requirement of 12.5 m required by the zoning by-law and 2017 site plan. Once it was explained that the building was being built at a lower elevation to set off the increased height of the sail roof versus the flat roof, her evidence is that she had no further objection to the roof design. The turning point for Mrs. Coulson during the meeting of July 30, 2019 was, when she introduced the topic of tree protection on the lot line and her property, she found that Mr. Ojha seemed dismissive of her concerns. From her point of view, that is what prompted her to leave the meeting.
[75] Although sightlines and building height were flagged as part of the general public concerns at the outset of the development, for the Coulsons the sightlines and building height have a distinctly personal impact. As the photographs included in the record show, the building is directly in their line of sight, directly blocking a view that they had from their elevated site. It cannot be said that the general public would have a concern about or interest in the Coulsons’ sightlines.
[76] With respect to the alleged expressions about the roof that may have been made at the Planning Council meeting on September 24, 2019, the minutes of the meeting are silent. With respect to the Coulsons’ objections, they are recorded as “including the negative impact to trees in the area and the changes to the site plan from its original design”. AM Gravenhurst’s planner addressed the changes to the site plan during the meeting, which was referenced as being the shifting of the structure from its originally proposed location; nothing is mentioned about roof design.
[77] The other concern noted to have been made by the Coulsons was “the negative impact of trees in the area”. The record amply supports that this concern was for the trees on the lot line and on their own property.
[78] Again, Mrs. Coulson’s evidence on cross-examination is that she was not objecting to the development itself at that Council meeting, but wanted a tree preservation plan to be completed before any approval. It was at this meeting that she presented the Minutes of Settlement and the Davey Tree Plan that speaks to the critical root zones for the trees on her property.
[79] Just because a topic is raised at a public meeting of Council, the public interest requirement is not automatically satisfied. Site plan compliance in respect of the height of the building would be of interest to the general public, but there is no evidence that this was an ongoing topic of discussion after the private meeting held by the parties on July 30, 2019 and not something that sparked the public’s interest by the time of the Council meeting in 2019.
[80] Although the environmental and aesthetic impact of tree removal is most certainly a topic of public interest and debate, the “negative impact to the trees in the area” can only be referring to the trees on the Coulson’s property or its boundary. While members of the community expressed concerns about the environmental impact of tree removal as part of this development, this must be understood in the context of the fact that the property owned by AM Gravenhurst was originally well-treed and the development required removal of virtually all trees from the property, as shown in the before and after topographical photos filed in the record. The expressions in question here are directed toward the specific trees that are of concern to the Coulsons as adjacent landowners.
Opposing the site plan application on September 24, 2019
[81] As just previously discussed, the expressions in question were those made at the Planning Council meeting where the site plan application was being reviewed. There is no further evidence on this point. The same discussion and conclusion applies to this expression as stated above.
Removing survey stakes marking the property boundary
[82] This allegation is denied by the Coulsons. The survey stakes in question are those that mark the property boundary between the Coulsons’ land and AM Gravenhurst’s land. The location of that boundary is not a matter of public interest. Whether the Coulsons removed the stakes is not a matter of public interest; not surprisingly, there is no evidence that any public interest has been shown in this issue.
Challenging the set-back of the footings from the shared property line
[83] The evidence regarding this allegation is contained in the affidavit of Chris Touesnard, the project manager for the development. The expression is contained in an email from Mrs. Coulson to Mr. Touesnard sent on June 23, 2022, and reads:
you should also note – as per our conversation – the west side of the build – should not be closer than 2.8 meters from the town property line as agreed to in the minutes as well and the 3 storey flat roof line (kindly note that we did meet on the property prior to any digging with the surveyor that was hired by Mr. Ojha (Bunker was the surveyor during the minutes of settlement) and he pointed out the property line.
[84] This led to AM Gravenhurst requesting that their own civil engineer survey the site, who confirmed the location of the property line and that the placement of the footings was correct. In a subsequent exchange of emails on June 27, 2022, Mrs. Coulson stated with regard to the property line that “it is a little off from when we initially were down there with the surveyor – but that is fine and acceptable.”
[85] This is an example of an expressions that makes reference to a matter of public interest – compliance with zoning and site plan requirements – but made in the context of ascertaining the correct property line between the two adjacent properties. These expressions do not relate to a matter of public interest because the public at large would not have an interest in the placement of the property line between these two landowners. There is no evidence that any public interest has been shown in this issue.
Retaining Wall
[86] The expressions in question pertain to the Coulsons inquiring about a building permit for the retaining wall erected next to the shared property line.
[87] The evidence shows that in January 2023, the Town’s CBO corresponded with Mr. Touesnard about a retaining wall. His email states:
Hi Chris.
I have been getting some questions about a retaining wall that is planned for the Isaac St project and I don’t see any mention of that on the plans.
Is there a need for a retaining wall?
[88] The source of the questions was not identified, but Mr. Coulson admitted on discovery that he and his wife did make an inquiry with the CBO about the retaining wall.
[89] AM Gravenhurst obtained a report from its architect opining that a building permit was not required under the Ontario Building Code. The Town allowed the wall to be built without a permit. There is no evidence that the Coulsons asked that this decision be reviewed. There is also no evidence that the Coulsons interfered with the concrete pouring and digging in relation to the retaining wall.
[90] Mrs. Coulson’s evidence about this expression is contained in her reply affidavit:
Until we met with Chris Tousenard we did not know a retaining wall was going to be installed. We believe that if we had not approached Greystone to ask about the excavation at the bank next to our property line we would not have been told about the installation of the retaining wall. Mr. Tousenard told us that they would work with us to resolve our concerns over the retaining wall. We initially believed that they were going to install the retaining wall with a sufficient buffer for our tree roots but when the excavation on the property line continued, we began to question if any critical root zone would be preserved.
When we became aware of the plan to install a retaining wall our lawyer Mr. Vernon repeatedly requested details of the plans for the retaining wall and whether it was going to be installed in a location pursuant to a tree preservation plan that protected the trees on our property and the lot line. We were not necessarily opposed to a retaining wall, especially given the depth of the Defendant’s excavation in the summer and fall of 2022, but we wanted to make sure it was in a location that protected our trees and the trees on the property line as the minutes of settlement required.
We never wished to hold up the installation of the retaining wall, as long as the retaining wall was installed in a location that protected the trees on the boundary line and our property as required by the minutes of settlement. Ultimately, the Defendant installed the retaining wall right against our property line with no regard to protection of the critical root zones of our trees or the trees on the property line. I did speak with Jeremy Sayers, the arborist from Coulson Bros Aboriculture and he told me that his role on site was to trim the roots after the soil was excavated right to our property line.
[91] Other than an exchange of correspondence between counsel with respect to the retaining wall, which also focuses on the impact on the trees, this is the evidence about the expressions regarding this issue.
[92] There is always a public interest in ensuring that erection of barriers such as a retaining wall in an area of parking that will be accessible to residents and visitors be constructed safely and in compliance with Ontario Building Code requirements. Again, in this case such an expression references something that is a matter of public interest, but the main thrust of the communication is revealed in Mrs. Coulson’s evidence. The expression relates once again to the Coulson’s private interest in protecting the trees on the shared property line and their own property.
Refusing to consent to the removal of boundary trees
[93] On October 13, 2022, Mrs. Coulson sent an email to Chris Touesnard, in which the subject line read “re: jointly owned trees – removal assessment”. She indicated that this was a matter of ongoing discussion between the parties’ lawyers, and that these trees were not to be removed.
[94] This email was in response to Mr. Touesnard’s of the same date, in which he referenced an order from the Town for removal of three jointly owned trees, and asked for permission to enter the property with a tree removal company to obtain a cost estimate.
[95] In the following month there was an exchange of correspondence between the lawyers setting out their parties’ respective positions with respect to the boundary trees touching the lot line or encroaching onto the development property.
[96] Once again, although a public interest was expressed in the environmental impact of tree removal as part of this development, the expressions in question here are directed toward the specific trees that are of concern to the Coulsons. Objectively the comments are related to the parties’ respective rights and obligations under the Minutes of Settlement, none of which affect the public at large.
Conclusion
[97] The moving parties have not met the threshold burden under s. 137.1(3) to show on a balance of probabilities that their expressions relate to a matter of public interest. The motion must be dismissed. So ordered.
[98] These reasons and this ruling should in no way be interpreted as comment on the merits of the parties’ respective claims.
Costs
[99] If the parties are unable to resolve the issue of costs, they may make brief written submissions limited to 5 pages each and 2 pages in reply, if necessary. The page limits do not include any offers or cost outlines. Any authorities are to be hyperlinked. The submissions of AM Gravenhurst are due by October 25, 2023, the submissions of the Coulsons are due by November 1, 2023, and reply by November 3, 2023. Submissions shall be served on the other party and filed with proof of service through the filing office at Bracebridge.Courts@ontario.ca, with a copy to my judicial assistant at BarrieJudSec@ontario.ca.
The Hon. Madam Justice S.E. Healey Released: October 17, 2023