COURT FILE NO.: CV-23-00696643-0000 DATE: 20231116

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Vahab Kamranpoor, Plaintiff -and- United Wire & Cable (Canada) Inc., Defendant

BEFORE: Robert Centa J.

COUNSEL: Christopher E. Kim, for the plaintiff Marty Rabinovitch, for the defendant

HEARD: October 31, 2023

Endorsement

Overview

[1] Vahab Kamranpoor worked as the General Manager of United Wire & Cable (Canada) Inc. from November 22, 2021, until October 27, 2022. He reported to the President of United Wire, Marilyn Pawluk. He earned $175,000 per year and was entitled to an annual bonus pursuant to his written employment contract.

[2] On October 11, 2022, Mr. Kamranpoor put a written ultimatum to Ms. Pawluk: appoint me President of United Wire, give me full control of operations and human resources, and increase my salary to $295,000 per year. Mr. Kamranpoor acknowledged that this “might be a difficult decision to make,” but told Ms. Pawluk that she needed to agree to those terms, “otherwise I have attached a copy of my resignation letter,” which read, in part,

I would like to thank you for the opportunity to have worked in the position for the past year. I have learned a great deal during my time here and have enjoyed collaborating with my team. I will take a lot of what I have learned with me in my career and will look back at my time here as a valuable period of my professional life.

[3] United Wire chose to accept Mr. Kamranpoor’s resignation.

[4] On February 27, 2023, counsel for Mr. Kamranpoor wrote an eight-page demand letter to United Wire. On March 22, 2023, Mr. Kamranpoor issued a statement of claim seeking damages for wrongful dismissal of $3.625 million, damages for unpaid wages of $2 million, $500,000 in damages for emotional and mental distress, and $1 million in “general, punitive and/or aggravated and/or moral damages.” In his claim, Mr. Kamranpoor asserts that he was a loyal and hard-working employee who performed his duties at a high level without any issues regarding his performance or behaviour.

[5] On March 27, 2023, apparently unaware that the statement of claim had been issued, counsel for United Wire wrote a detailed response to the demand letter. United Wire disputed the factual underpinning of Mr. Kamranpoor’s demands and noted that he had resigned his employment. Counsel explained that United Wire believed that Mr. Kamranpoor had caused significant damage to the company including, but not limited to, the purchase of $1 million of wire that was unfit for the purposes of United Wire’s client. Counsel for United Wire explained that if Mr. Kamranpoor commenced litigation, he expected to receive instructions to bring a counterclaim, which could seek damages in excess of $2 million.

[6] On May 2, 2023, United Wire served its statement of defence and counterclaim, which it amended on July 18, 2023. United Wire pleaded that Mr. Kamranpoor resigned, but if he didn’t resign, the company had just cause to terminate his employment. United Wire pleaded many of the same facts contained in its letter to support its defence of termination for just cause. United Wire also relied on those facts in support of its counterclaim seeking damages of $3.27 million.

[7] Mr. Kamranpoor now brings this motion under s. 137.1 of the Courts of Justice Act to have United Wire’s counterclaim dismissed as a strategic lawsuit against public participation. Mr. Kamranpoor submits that his statement of claim contains expressions on a matter of public interest, that the counterclaim arises from the expression at issue, that United Wire cannot meet the “substantial merits” burden and cannot demonstrate grounds to believe that Mr. Kamranpoor has no valid defences. Finally, Mr. Kamranpoor submits that United Wire cannot satisfy the public interest assessment.

[8] I disagree. The protections offered by s. 137.1 are limited to protecting speech related to matters of public interest. The resolution of purely private disputes that have no immediate bearing on the rights or obligations of others are seldom matters of public interest: Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, at para. 19; Grist v. TruGrp Inc., 2021 ONCA 309, at para. 19.

[9] Mr. Kamranpoor’s action is an employment law dispute. It is entirely unexceptional, other than the fact that it is admittedly unusual for a short-term employee who resigns to then seek over $7 million in damages. With respect, this is not a matter about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable (or any) public notoriety or controversy has attached: Grant v. Torstar Corp., 2009 SCC 61, at para. 105. Mr. Kamranpoor’s statement of claim is not an expression that relates to a matter of public interest.

[10] In my view, United Wire should be permitted to continue with its counterclaim. United Wire’s counterclaim is not the paradigmatic SLAPP proceeding: a meritless action brought by a powerful, well-heeled party in an attempt to tie up a critic in legal proceedings, cause them economic harm, and ultimately silence them and anyone else that might otherwise be tempted to criticize them in the future: Mondal v. Kirkconnell, 2023 ONCA 523, at para. 31.

[11] It is important to recall that Mr. Kamranpoor’s motion, if successful, would only dispose of United Wire’s counterclaim. Win or lose, Mr. Kamranpoor’s claim will continue including, presumably, his assertions regarding his competence and diligence. United Wire will, presumably, continue to rely on the very same allegations that underpin its counterclaim to defend the main action, including to advance its defence that it had just cause for dismissal. If it proves that misconduct and damages, however, United Wire would be prevented from collecting damages in respect of it. In my view, Mr. Kamranpoor’s motion added to the expense and the delay of this proceeding, which is anathema both to the purposes of s. 137.1 and employment litigation more generally.

[12] For the reasons that follow, I dismiss Mr. Kamranpoor’s anti-SLAPP motion.

The parties and key individuals

[13] Mr. Kamranpoor is a 44 year-old professional engineer. He holds both an MBA and an LL.M. in Energy and Infrastructure. He worked at Hydro One for 13 years before he joined United Wire. His final position at Hydro One was Senior Manager – Integrated Systems and Data Governance. The parties dispute whether or not United Wire induced him to leave secure employment at Hydro One. The evidence suggests that a recruiter sent him an unsolicited message on LinkedIn about the opportunity at United Wire.

[14] United Wire supplies electric equipment and services to electrical wire and cable customers in Canada and internationally. It is a family-run business. It is privately owned, and its shares are not publicly traded.

[15] The President of the company is Marlyn Pawluk. Her daughters, Robyn Baldasti and Laura-Anne Tredenick are directors of the company. Ms. Baldasti oversees the finance department. Ms. Tredenick is responsible for Human Resources. Together, the three family members form the senior management of United Wire.

[16] Ms. Baldasti filed an affidavit for use on this motion. I disagree with Mr. Kamranpoor’s submission that she was not an appropriate affiant. She had direct, first-hand information relevant to this proceeding. As mentioned, she was a member of senior management and a director of the company. I disagree with Mr. Kamranpoor’s submission that United Wire should have chosen a different affiant. I also do not accept Mr. Kamranpoor’s submission that her affidavit did not comply with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. I note that counsel for Mr. Kamranpoor did not explore the limits of Ms. Baldasti’s personal knowledge during his extremely brief cross-examination of her.

Section 137.1 of the Courts of Justice Act

[17] In 2015, Ontario amended the Courts of Justice Act by introducing sections 137.1 to 137.5. These provisions aimed to reduce the harmful effects of strategic lawsuits against public participation (although that term was not used in the legislation). The provisions are designed to allow persons, typically defendants, to have strategic or abusive actions, typically defamation proceedings, dismissed at an early stage in order to protect the public interest in freedom of expression: Volpe v. Wong-Tam, 2023 ONCA 680, at para. 33; Mondal v. Kirkconnell, 2023 ONCA 523, at para. 29. It was not intended to foreclose the trial of actions that concern purely private and commercial disputes that do not involve expressions on matters of public interest: Thorman v. McGraw, 2022 ONCA 851, at para. 3.

[18] The legislature set out the purposes of the provisions in the legislation itself:

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.

[19] My interpretation of this provision would always be informed by its purpose. However, where the legislature has explicitly described the purpose of the provision, I should pay particular attention to it.

[20] The Supreme Court of Canada explained that the purpose of s. 137.1 is to circumscribe proceedings that adversely affect expression made in relation to matters of public interest in order to protect that expression and safeguard public participation in democracy: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, at para. 30. Section 137.1, however, is not a new form of summary trial or a motion for summary judgment on the merits of an action: Grist, at para. 17; Thorman, at para. 4. It is not intended to preclude legitimate actions: Mondal, at para. 31. It is meant to provide an early and cost-effective means of ending litigation brought to silence a party who has spoken out on a matter of public interest: Sokoloff, at para. 47.

[21] Section 137.1 places an initial burden on Mr. Kamranpoor to satisfy me that United Wire’s counterclaim arises from his expression relating to a matter of public interest. If Mr. Kamranpoor meets that burden, the burden then shifts to United Wire to satisfy me that there are grounds to believe that its counterclaim has substantial merit, that Mr. Kamranpoor has no valid defence, and that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. If United Wire meets its burden, then Mr. Kamranpoor’s motion will be granted and United Wire’s counterclaim will be dismissed: Pointes, at para. 18.

[22] As mentioned, Mr. Kamranpoor’s motion under s. 137.1 is not a motion for summary judgment. I must be mindful that this motion is brought on the basis of limited evidence and at a very early stage in the proceeding. A s. 137.1 motion is not the time for a “deep dive” into the evidence; only a limited assessment of the evidence is appropriate: Pointes, paras. 39, 52, and 70-71.

Step one: Does the counterclaim arise from a communication that relates to a matter of public interest?

[23] The first step in this motion is described in s. 137.1(3) of the Courts of Justice Act. For ease of reading, I have specified that the “person” referred to in the provision is, in this case, Mr. Kamranpoor. The relevant provisions are as follows:

137.1 (2) In this section,

“expression” means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.

(3) On motion by [Mr. Kamranpoor] a judge shall, subject to subsection (4), dismiss the proceeding against [Mr. Kamranpoor] if [Mr. Kamranpoor] satisfies the judge that the proceeding arises from an expression made by [Mr. Kamranpoor] that relates to a matter of public interest.

[24] Given the language of s. 137.1(3), Mr. Kamranpoor must prove three things:

a. there was an expression;

b. that expression relates to a matter of public interest; and

c. United Wire’s counterclaim arises from that expression.

There was an expression

[25] Mr. Kamranpoor submits that the expression at issue are statements that he pleaded in his statement of claim. The Court of Appeal for Ontario recently held that a plaintiff’s statements in a statement of claim may amount to an “expression” within the meaning of s. 137.1: Boyer v. Callidus Capital Corporation, 2023 ONCA 233. I accept, therefore, that Mr. Kamranpoor’s statements in his statement of claim constitute expression for the purposes of s. 137.1(3).

The expression does not relate to a matter of public interest

[26] Next, Mr. Kamranpoor must establish that his expression relates to a matter of public interest.

[27] I am to identify the subject matter of the expression and to determine whether or not it relates to any matter of public interest, defined broadly: Volpe, at para. 46; Pointes, at para. 28. In Buttar, the Court of Appeal for Ontario recently summarized the guiding principles for assessing whether or not an expression relates to a matter of public interest: 2110120 Ontario Inc. v. Buttar, 2023 ONCA 539, at para. 42; Pointes, at paras. 26 to 30 and 65; Sokoloff, at para. 25. The relevant principles for this case include the following:

a. The court should adopt a broad, liberal, generous, and expansive approach to whether the expression relates to a matter of public interest.

b. The burden on Mr. Kamranpoor is not onerous.

c. The interpretation of “public interest” must be informed by the purpose of the anti-SLAPP legislation, which is to safeguard the fundamental value that is public participation in democracy, and there is necessarily a normative aspect to what is genuinely a matter of public interest.

d. Ultimately, the inquiry is a contextual one that is fundamentally asking what the expression is really about.

e. In considering the entire context of the expression, the quality of the expression is not relevant. It is not legally relevant whether the expression is desirable or deleterious, valuable or vexatious, or whether it helps or hampers the public interest. There is no qualitative assessment of the expression at this stage.

f. Mr. Kamranpoor’s motive, merit and manner are irrelevant in determining whether an expression relates to a matter of public interest.

[28] I emphasize that at this stage of the analysis, I am solely concerned with whether Mr. Kamranpoor has demonstrated that his expression relates to a matter of public interest. Questions about the merits of the counterclaim, Mr. Kamranpoor’s available defences, and the relative harm between the expression on the one hand and permitting the proceeding to advance on the other will be considered later in the analysis, where the burden shifts to United Wire: Zeppa v. Rea, 2023 ONCA 668, at para. 22.

[29] Assessing Mr. Kamranpoor’s communication as a whole, the question is whether “some segment of the community would have a genuine interest in receiving information on the subject”: Sokoloff, at para. 17; Pointes, at para. 102. There is no single test for identifying what is in the public interest as the public has a genuine stake in knowing about many matters across many topics: Pointes, at para. 27.

[30] Not everything, however, relates to a matter of public interest. An expression referring to a matter of public interest is not the same thing as a statement relating to a matter of public interest: Dent-X Canada v. Houde, 2022 ONCA 414, at para. 10. Simply referring to something that is of public interest is insufficient. Justice Huscroft put it this way:

But not everything relates to a matter of public interest. For example, it is not enough if expression simply makes reference to something that is of public interest, or to something that arouses the public’s curiosity. Moreover, the court’s instruction of interpretive generosity cannot be read in isolation. The scope for legitimate interpretation of vaguely worded concepts such as “public interest” must be informed by the purpose of the legislation: to safeguard the fundamental value that is public participation in democracy: Sokoloff, at para. 19 and 32.

[31] Understood in its context, what is the expression about? That is the question at the heart of the s. 137.1(3) inquiry.

[32] It is important to analyze the specific statements that constitute the expression at issue: Grist, at para. 21. In response to my question, counsel advised that Mr. Kamranpoor relied on paragraphs 19, 21, 24, 25, 29 to 35, and 41 to 81 of the statement of claim as the specific expression that relates to a matter of public interest. This is the relevant subject matter of this motion: Grist, at para. 21. Therefore, I must determine what these paragraphs of the statement of claim are really about.

[33] Paragraphs 19, 21, 24, and 25 are about Mr. Kamranpoor’s requests for additional resources and management’s refusal to provide these resources to him, despite Mr. Kamranpoor telling management that their staff were being overworked and suffering from burnout:

19. As noted above, during the hiring process, Mr. Kamranpoor was assured that any request for resources would be made directly to the President and final decisions with respect to the same would be made by the President. However, Ms. Tredenick would not allow this. …

20. Given the fact that Ms. Tredenick was the President's daughter, Mr. Kamranpoor felt he had no choice but to comply. …

21. Mr. Kamranpoor even advised Ms. Tredenick that many of the employees were suffering from the effects of burnout and deterioration of mental health due to the working conditions being imposed on them - i.e., overworked due to a lack of resources.

22. Despite the above, without any reasoning, Ms. Tredenick continued to refuse Mr. Kamranpoor's requests.

[34] Paragraphs 29 to 35 repeat Mr. Kamranpoor’s statements about insufficient resources, and the consequences arising including on his own personal health:

29. Despite the above, the board never met nor did they address Mr. Kamranpoor's concerns or requests.

30. Mr. Kamranpoor persisted and followed up with Ms. Tredenick and Ms. Pawluk as his team was suffering due to being overloaded with work with little to no resources.

31. UWC continued to ignore Mr. Kamranpoor's requests.

32. Eventually, many of UWC's employees were forced to resign due to health-related reasons, including burnout and mental health concerns, including those on Mr. Kamranpoor's teams.

33. In response, Ms. Tredenick became increasingly aggressive towards Ms. Kamranpoor and demanded that the workload of those who left be dumped on the remaining employees to save costs. When Mr. Kamranpoor protested this order, Ms. Tredenick aggressively demanded that he "toe the line" and do as she says if he wants to continue working at UWC.

34. Given that Ms. Tredenick was the President's daughter, Mr. Kamranpoor felt that he had no choice but to comply for the safety of his job.

35. Unfortunately, despite his efforts, it was clear that the amount of work being dumped on Mr. Kamranpoor and the other employees was unsustainable. As time progressed, UWC's neglect was taking a toll on Mr. Kamranpoor's physical and mental health. He began to show clear signs of deterioration.

[35] Paragraphs 41 to 48 assert Mr. Kamranpoor’s claim for damages arising from his wrongful dismissal, including the inducement to leave secure employment at Ontario Hydro, and the facts of his personal circumstances as they relate to the Bardal factors that support 20 months’ notice of termination.

[36] Paragraphs 49 to 62 assert Mr. Kamranpoor’s claim for damages for an unpaid bonus, including vacation pay on that unpaid bonus.

[37] Paragraphs 63 to 66 assert Mr. Kamranpoor’s claim to damages for emotional and mental distress arising from United Wire’s response to his request for additional resources, which led to his hospitalization.

[38] Paragraphs 67 to 81 assert Mr. Kamranpoor’s claims to punitive, aggravated, or moral damages. He asserts that United Wire failed to provide him with the resources he requested, and that this adversely affected the company’s staff, some of whom resigned. He further asserts that United Wire did not pay his bonus.

[39] I find that Mr. Kamranpoor’s statements do not relate to a matter of public interest. The statements in his pleading do not address an issue about which the public has some substantial concern because it affects the welfare of citizens or has attracted considerable public notoriety or controversy: Grant at para. 105; Grist at para. 18. Instead, understood in their context, I find that the statements are about a purely private dispute between Mr. Kamranpoor and his former employer: Sokoloff, at para. 33.

[40] The statement of claim raises no general concerns about the importance of employer-employee relations. It is really about Mr. Kamranpoor’s personal employment dispute with United Wire. Many of the statements relate to his view that management did not accept his recommendations and the consequences of management not accepting his requests. As in Grist, this dispute has no immediate bearing on the rights or obligations of others:

The public interest includes such matters as the establishment, use, allocation, and maintenance of shared public goods, and therefore protects discussion and advocacy about the distribution of benefits and burdens of social life. But the public interest is not necessarily limited to matters of shared public life…. There is, after all, a public interest in maintaining peaceful relations between persons in society and in drawing attention to acts of injustice. But 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…. Grist, at para. 19 [internal citations omitted].

[41] I would characterize Mr. Kamranpoor’s statements as allegations supporting his claim to damages for wrongful dismissal despite his resignation. The statements explain why he offered his resignation and why that resignation should not be legally effective. The statements underpin his own claim for damages, including his claims for $500,000 in damages for emotional and mental distress, and $1 million in “general, punitive and/or aggravated and/or moral damages.” I am not focussing here on his motive, but specifically on whether his comments relate to a matter of public interest. I find that Mr. Kamranpoor’s statements relate only to his private dispute with his former employer and the facts necessary to support his claim for his own damages.

[42] Mr. Kamranpoor submits that some of his statements relate to his allegations that United Wire withheld his wages and that this is a matter that relates to the public interest. He points to newspaper articles that discuss the scourge of employers withholding wages from their employees. He also relies on decisions where an expression about a private dispute can nevertheless relate to a matter of public interest: 2110120 Ontario Inc. v. Buttar, 2023 ONCA 539, at para. 48.

[43] For example, the Court of Appeal in Nanda held that allegations that a candidate for the office of union president committed corruption and misconduct related to a matter of public interest: Nanda v. McEwan, 2020 ONCA 431, 450 D.L.R. (4th) 145. Similarly, in Buttar, the Court of Appeal held that expressions about the business practices of Cargo County and its principals, including how they treated their truck drivers and whether they were engaging in unfair, exploitative, or illegal labour practices related to the public interest: Buttar, at para. 50. The Court of Appeal held that, viewed objectively, there was a public interest in the business practices of Cargo County and, by extension, other business engaging vulnerable workers. The expression in that case was about unfair labour practices and arose after complaints under the Canada Labour Code had been resolved in favour of the truck drivers.

[44] I see little connection, however, between Mr. Kamranpoor’s allegations and issues related to fair labour practices involving vulnerable workers. The court must consider the particular expression in question, not the topic of that expression: Echelon Environmental Inc. v. Glassdoor Inc., 2022 ONCA 391, at para. 11. Not every expression about, for example, workplace harassment will necessarily fall within the scope of the public interest: Safavi-Naini v. Rubin Thomlinson LLP, 2023 ONCA 86, at para. 20. Mr. Kamranpoor, a senior manager, alleges that he was entitled to a bonus payment. His employment contract states that “to be eligible for any Bonus amount, you must be actively employed with [United Wire] at the time the bonuses are declared.” United Wire’s evidence on this motion is that bonuses were not declared until December 2022, well after Mr. Kamranpoor resigned from United Wire. Mr. Kamranpoor’s did not cross-examine on this evidence.

[45] It is not my role on this motion to determine whether or not Mr. Kamranpoor was entitled to a bonus. I am, nevertheless, satisfied that Mr. Kamranpoor’s statements about his entitlement to a bonus, its quantum, and whether or not vacation pay should be paid on the amount of the bonus have little to do with the broader issue of wage theft. Mr. Kamranpoor’s expression relates to the interpretation of his own contract, not to a matter of public interest.

[46] I accept that, at a high level of generality, there is a broad social interest in working conditions in this country and issues of unfair labour practices targeting vulnerable workers. In some cases, employee speech about workplace issues may well be a matter of public interest: Echelon at para. 11. But that does not mean that every workplace dispute is a matter of significance having significance to anyone other than the parties involved. Mr. Kamranpoor’s expression relates to a fundamentally private dispute that does not attract the protections of s. 137.1: Grist, at para. 23. In this respect, Mr. Kamranpoor’s case is very much like the case of Sokoloff.

[47] In Sokoloff, Troy Campbell’s expression giving rise to the action consisted of him standing outside Ms. Sokoloff’s law offices with placards proclaiming his views about the parties' financial dispute. He claimed that the law firm owed him money under a referral agreement. The Court of Appeal held that Mr. Campbell’s expression was about the parties' private fee dispute, which did not relate to a matter of public interest simply because the dispute involved a lawyer who owed ethical obligations. The Court of Appeal held that Mr. Campbell’s expression raised no "general concerns" about the ethical conduct of lawyers, "nor was it directed to anyone with an interest in the [lawyers’] conduct": Sokoloff, at para. 35.

[48] In Sokoloff, the Court of Appeal distinguished between communications that relate to a lawyer’s public conduct as a member of the legal profession and a lawyer’s private conduct in carrying on their business. Communications about a lawyer’s conduct as a member of the legal profession may relate to a matter of public interest: Sokoloff, at para. 31. Communications about a contract dispute between a lawyer and one of their service providers likely would not relate to a matter of public interest. In my view, Mr. Kamranpoor’s statements relate to a contract dispute with his former employer, not to a matter of public interest.

[49] Similarly, I do not accept Mr. Kamranpoor’s submission that this case is like Boyer v. Callidus Capital Corporation. In Boyer, the Court of Appeal struck out the counterclaim of Callidus Capital Corporation under s. 137.1. Both the motion judge and the Court of Appeal concluded that Mr. Boyer’s statement of claim, which alleged constructive dismissal due to a toxic work environment, were expressions related to the public interest. Justice Cavanagh relied on the following features of the case to support his finding that the business practices of Callidus Capital are matters of public interest to the investing public:

a. at the time, Callidus Capital was one of Canada’s most influential, publicly traded lenders to distressed businesses;

b. allegations that Callidus Capital was a toxic workplace due, in part, to the behaviour of its CEO, had been the subject of an article in the Globe & Mail;

c. the business practices of Callidus Capital and its related private company Catalyst Capital Group Inc. had generated whistleblower complaints, published news articles, and a surprisingly large amount of litigation: Boyer v. Callidus Capital Corporation, 2022 ONSC 3772, at para 44 to 46; The Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 381, affirming 2021 ONSC 7957.

[50] In my view, there is no meaningful similarity between Callidus Capital and United Wire. Callidus Capital was publicly traded and United Wire is privately held. Callidus Capital was a high profile company lending to distressed businesses and United Wire is a low-profile company selling wire and electrical services to specialized users. Callidus had billions of dollars under its control. United Wire is a small, family-run business. Unlike United Wire, the business practices of Callidus Capital and its related private company Catalyst Capital were the subject of a series of high profile newspaper articles, whistleblower complaints, and extensive litigation.

[51] In conclusion, the essential question is this: understood in its context, what is the impugned expression really about? In my view, the expression is about a private dispute between Mr. Kamranpoor and United Wire about his pay and benefit levels, work requirements, infrastructure, and the terms of his departure from the company: Echelon, at para. 8. The references to his alleged disputes with United Wire over resource allocation and the effect of resource allocation on other workers are merely incidental to this private dispute. Mr. Kamranpoor was not speaking on matters that have significance to anyone beyond himself: Grist, at para. 17. I find that paragraphs 19, 21, 24, 25, 29 to 35, and 41 to 81 of the statement of claim do not constitute expression related to a matter of public interest.

[52] The protections available under s. 137.1 are only available with respect to actions brought in respect of expressions related to a matter of public interest. My finding on this threshold issue means that the motion must be dismissed. However, I should consider the remaining steps in the test in case my finding on the threshold question is reversed on appeal: Echelon, at para. 12; Mondal, at paras. 66-67.

United Wire’s counterclaim arises from Mr. Kamranpoor’s communications

[53] Mr. Kamranpoor must demonstrate that United Wire’s counterclaim arises from his expressions in the statement of claim. This burden is not onerous. As the Supreme Court of Canada explained:

what does “arises from” require? By definition, “arises from” implies an element of causality. In other words, if a proceeding “arises from” an expression, this must mean that the expression is somehow causally related to the proceeding. What is crucial is that many different types of proceedings can arise from an expression, and the legislative background of s. 137.1 indicates that a broad and liberal interpretation is warranted at the s. 137.1(3) stage of the framework: Pointes, at para. 24.

[54] At this stage, I am again to consider the context in which United Wire issued its counterclaim. In taking a broad and liberal approach, I am directed to “consider the context and not pursue a rigid and formalistic view of the pleadings”: Boyer, at para. 37.

[55] Mr. Kamranpoor submits that United Wire’s counterclaim arises from his statement of claim the same way that the Callidus counterclaim arose from Mr. Boyer’s statement of claim. In Boyer, the Court of Appeal held as follows:

When the allegations of a toxic work environment were made public by the appellant, Callidus immediately responded with a claim for $150 million. No underpinning is given for the quantum of damages. The claim is based on bald allegations with no itemization or explanation of loss suffered. It is based on events that Callidus had known about for years and never mentioned before. Only when the allegations of a toxic work environment were made public by the appellant was there a claim made. The cross-examinations show the allegations are unsubstantiated. Callidus’ own representatives confirmed as much: Boyer, at para. 38.

[56] This case differs from the Boyer case in a number of ways. First, United Wire’s damages claim is much smaller than both the Callidus claim ($150 million) and Mr. Kamranpoor’s claim ($7 million). Second, United Wire has itemized a number of specific damages claims that, when added together, comprise the significant majority of the damages it claims. Third, United Wire has not admitted that its claims are unsubstantiated. Fourth, the cross-examination of United Wire’s witness did not undermine the damages claim. Indeed, counsel for Mr. Kamranpoor did not ask a single question about United Wire’s claim for damages.

[57] Nevertheless, United Wire did not pursue its significant damages claim until Mr. Kamranpoor served the statement of claim. In his letter dated March 27, 2023, to counsel for Mr. Kamranpoor, counsel for United Wire explained why United Wire disagreed with the demand for compensation made by Mr. Kamranpoor and stated that if Mr. Kamranpoor commenced litigation, the company would bring a counterclaim:

Accordingly, we would strongly suggest that your client reconsider his position. Any litigation commenced against the Company will be vigorously defended, and should your client choose to commence litigation, I expect to receive instructions to proceed with a Counterclaim against Mr. Kamranpoor. The Counterclaim will be for at least $2 million and will include claims for some or all of the following: breach of contract, damages arising from your client's errors and omissions, reputational loss to the Company, costs related to training your client, taking steps to correct his errors and engaging in "damage control" with its clients. Should a Counterclaim be necessary, your client's exposure will be significant.

[58] Considered in context of the letter dated March 27, 2023, and taking a broad and liberal approach, I am satisfied that Mr. Kamranpoor has met the low threshold of demonstrating an element of causality. I am satisfied that Mr. Kamranpoor has demonstrated that the counterclaim arises from the specified statements in his statement of claim.

Step two: Does the counterclaim meet the merits-based hurdle?

[59] The next step in a motion under s. 137.1 is described in s. 137.1(4)(a) of the Courts of Justice Act. Adapted for use in this case, the relevant provisions are as follows:

(4) A judge shall not dismiss [the counterclaim] under subsection (3) if [United Wire] satisfies the judge that,

(a) there are grounds to believe that,

(i) the [counterclaim] has substantial merit, and

(ii) [Mr. Kamranpoor] has no valid defence in the [counterclaim],

[60] The legislature has established “grounds to believe” as the standard United Wire must meet in this phase of the test. This standard is something more than suspicion, but less than proof on a balance of probabilities: Pointes, at para. 40. Bearing in mind that this motion is taking place at an early stage in the proceeding, United Wire must establish that there are grounds to believe that its counterclaim has substantial merit and that Mr. Kamranpoor has no valid defence.

Are there grounds to believe the counterclaim has substantial merit?

[61] For this proceeding to have substantial merit, it must have a real prospect of success. A claim with merely some chance of success will not meet this part of the test. There must be a basis in the record and law to conclude that there are grounds to believe the claim is legally tenable and supported by evidence that is reasonably capable of belief: Pointes, at para. 49.

[62] In its counterclaim, United Wire asserts a number of causes of action. The court’s function at this stage is not to assess the merits of each individual cause of action pleaded in the counterclaim, but to determine whether there are grounds to believe that United Wire will succeed in the proceeding: Buttar, at para. 55. The question is whether there is a single basis in the record and law to support a finding of substantial merit: Bent v. Platnick, 2020 SCC 23, at para. 88. I am concerned with the overall merits of the counterclaim.

[63] First, United Wire asserts that Mr. Kamranpoor breached the employment contract by failing to return his $20,000 signing bonus when he resigned his employment before completing one year of employment. Mr. Kamranpoor started work on November 22, 2021, and his resignation took effect on November 11, 2022. United Wire pleads that Mr. Kamranpoor has not returned the signing bonus. In my view, there is a basis in the record and law to conclude that there are grounds to believe the claim is legally tenable and supported by evidence that is reasonably capable of belief.

[64] Second, United Wire asserts that Mr. Kamranpoor breached fiduciary duties owed to United Wire. It is not clear to me that as a General Manager, Mr. Kamranpoor would owe per se or ad hoc fiduciary duties to United Wire. Not every employee owes fiduciary duties to her or his employer. The relationship between employers and employees is not a category of relationship that gives rise to fiduciary obligations because of its inherent purpose or presumed factual or legal characteristics. In some cases, the particular circumstances of the relationship between an employer and an employee may give rise to an ad hoc fiduciary duty. Fiduciary obligations may arise as a matter of fact out of the specific circumstances of a particular relationship: Lac Minerals Ltd. v. International Corona Resources Ltd. at pp. 646 to 648; Galambos v. Perez, 2009 SCC 48, at paras. 36 and 70; Morgan Canada Corporation v. MacDonald, 2023 ONSC 5217, at paras. 30 and 31.

[65] However, in this case, I do not think anything turns on whether or not Mr. Kamranpoor owed fiduciary duties to United Wire. In his contract of employment, Mr. Kamranpoor agreed that he owed “a duty of loyalty, fidelity, and allegiance to act at all times in [United Wire’s] best interests.” This contractual duty is broad enough to support United Wire’s pleaded claims of Mr. Kamranpoor’s misconduct set out in paragraph 25 of the amended statement of defence and counterclaim:

b) Kamranpoor approved an order of approximately $1,000,000.00 USD worth of cable for a particular project, despite the fact that he knew, or ought reasonably to have known that the client had specifically advised that the particular type of cable ordered was not to be used in their projects; the Company is unable to cancel this order and is expected to be required to pay in full for this $1,000,000.00 USD worth of cable, which is unusable in other Company projects and is expected to cause the Company to sustain out-of-pocket damages in this amount;

c) Kamranpoor was also responsible for the premature ordering of additional cable in the approximate amount of $400,000.00. The project was ultimately cancelled, and no deposit was made by the customer to cover the cost of the cable. The orders could not be cancelled and the cable was not returnable. This has caused the Company to sustain out-of-pocket damages in the amount of $400,000.00;

d) Kamranpoor was responsible for overseeing the Project Managers' execution of projects and material orders. Incorrect material was ordered for a particular project. The supplier permitted the Company to return the material, but charged a re-stocking fee in the amount of $25,000.00. This has caused the Company to sustain out-of-pocket damages in this amount;

e) Kamranpoor was responsible for overseeing the Company's sales department. On many occasions, Kamranpoor approved quotes which contained significant errors (i.e. he underquoted, and quoted the incorrect cable that was not in accordance with the customer specifications), which ultimately required the Company to incur out of pocket expenses which it could not recover from its clients; and

f) As a direct result of Kamranpoor's acts, omissions and errors, the Company experienced significantly more employee complaints, a negative shift in the corporate culture, customer complaints, and damage to the Company's relationships with its customers, suppliers and sales agencies.

[66] United Wire supported the claims in paragraphs 22 to 50 of the affidavit it filed on this motion. Counsel for Mr. Kamranpoor did not cross-examine on any of this evidence, which also supports United Wire’s pleading of damages for negligence. In my view, there is a basis in the record and law to conclude that there are grounds to believe United Wire’s claims for breach of the contractual duties of loyalty, fidelity, and to act in the best interests of United Wire, and its claim in negligence, are legally tenable and supported by evidence that is reasonably capable of belief.

[67] Third, United Wire pleads that it has sustained business losses arising from a client who was deeply dissatisfied with Mr. Kamranpoor’s work on a project. United Wire pleads that it incurred direct losses of over USD $320,000 arising from cable that was not fit for the client’s purposes. United Wire further pleads that the client has essentially stopped doing business with United Wire because it came to the view that Mr. Kamranpoor, the company’s General Manager, was not conducting business in good faith. Such misconduct would appear to breach Mr. Kamranpoor’s contractual obligations to United Wire. The company supported this claim in the affidavit filed on this motion. Counsel for Mr. Kamranpoor did not cross-examine on this evidence. In my view, there is a basis in the record and law to conclude that there are grounds to believe United Wire’s claims for business losses is legally tenable and supported by evidence that is reasonably capable of belief.

[68] Fourth, United Wire seeks reimbursement “wasted costs related to training Mr. Kamranpoor.” This claim does not appear to have significant merit and is of little moment.

[69] In conclusion, United Wire has satisfied me that there are grounds to believe that its counterclaim has substantial merit. There are grounds to believe that United Wire will succeed in the counterclaim.

Are there grounds to believe that Mr. Kamranpoor has no valid defences?

[70] United Wire bears the onus to satisfy me that there are grounds to believe that Mr. Kamranpoor has no valid defence to the counterclaim. As an initial matter, however, Mr. Kamranpoor first has the onus to put his defences in play: Buttar, at para. 59; Pointes at paras. 56 and 57. There are generally three ways that a person can put a defence in play:

a. serve and file a statement of defence to counterclaim;

b. attach a draft statement of defence to counter claim to an affidavit; or

c. otherwise detail the content of the defence in an affidavit filed in support of the motion: United Soils Management Ltd. v. Katie Mohammed, 2017 ONSC 904, at para. 21.

[71] In this case, Mr. Kamranpoor neither delivered a statement of defence to the counterclaim nor included a draft defence to counterclaim in his motion material. I must then look to other materials Mr. Kamranpoor filed, including his affidavit and factum.

[72] Bald allegations and unparticularized defences “are not the stuff from which ‘grounds to believe’ are formulated”: 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, at paras. 82-83. The material filed on the motion must be sufficiently detailed to allow the court to “clearly identify the legal and factual components of the defences advanced.” United Wire, however, bears the ultimate burden to show that the defences raised are not legally tenable or supported by the evidence that is reasonably capable of belief such that they can be said to have no real prospect of success: Hansman v. Neufeld, 2023 SCC 14, at para. 94.

[73] In his factum, Mr. Kamranpoor submits he was not a fiduciary and, therefore, did not owe fiduciary duties to United Wire. This submission does not address Mr. Kamranpoor’s parallel contractual duties, which I have discussed above. I find that there are grounds to believe that Mr. Kamranpoor does not have a defence to that contractual claim.

[74] Second, Mr. Kamranpoor submits that he cannot be found liable to his employer in negligence. He relies on the case of Douglas v. Kinger, 2008 ONCA 452. That case, however, held that a 13-year old unskilled boy hired to work part-time at a cottage did not owe a duty of care to his employer. In that decision, the Court of Appeal noted that there were Ontario cases that held that highly skilled employees earning substantial professional income could be found liable to their employers in negligence: Douglas citing Pinto v. BMO Nesbitt Burns Inc. and Dominion Manufacturers Ltd. v. O'Gorman (1989), 24 C.C.E.L. 218 (Ont. Dist. Ct.). In addition, there is a significant overlap between the material facts related to United Wire’s breach of contract claim. I find that there are grounds to believe that Mr. Kamranpoor does not have a defence to the claim in negligence.

[75] Third, Mr. Kamranpoor submits that the contract term requiring him to repay the bonus if he resigned before he completed one year of employment is not valid because another portion of the termination provision violates the Employment Standards Act. While Mr. Kamranpoor may be able to establish the defence at trial, it does not appear to have significant merit. In addition, it would require a deeper dive into the evidence than is appropriate on a s. 137.1 motion. I find that there are grounds to believe that Mr. Kamranpoor does not have defence to United Wire’s claim that he is to return his bonus.

[76] In my view, United Wire has satisfied me that there are grounds in the evidence to believe that Mr. Kamranpoor has no valid defence. Of course, that finding does not, in any way, prejudge whether or not Mr. Kamranpoor will be able to make out these defences at trial.

Step three: Weighing the public interest in permitting the counterclaim to proceed with the public interest in protecting the expression

[77] The final weighing exercise is to take place under s. 137.1(4)(b), which states:

(4) A judge shall not dismiss a proceeding under subsection (3) if the [United Wire] satisfies the judge that,

(b) the harm likely to be or have been suffered by [United Wire] as a result of [Mr. Kamranpoor’s] expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

[78] The Supreme Court of Canada has referred to this stage as “the crux” of the analysis: Pointes, at para. 30; Boyer, at para. 50. The onus is on United Wire to satisfy the court that the harm it suffered as a result of Mr. Kamranpoor’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. Proportionality is the paramount consideration in determining whether the counterclaim should be dismissed: Mondal, at para. 44.

[79] In my view, this case fits somewhat uneasily within the usual analytical framework deployed at the s. 137.1(4)(b) stage. United Wire is not asserting that it suffered harm because of Mr. Kamranpoor’s expressive activity, being paragraphs 19, 21, 24, 25, 29 to 35, and 41 to 81 of the statement of claim. United Wire seeks to recover damages for alleged misconduct that pre-dates Mr. Kamranpoor’s expression and is factually and legally distinct from that expression.

[80] United Wire does not need to demonstrate a particular kind of harm. Either monetary or non-monetary harm is sufficient, and it need not be quantified. The case law makes clear that United Wire is not required to provide a fully developed damages brief, but that I am not required to accept the pleadings or bald assertions of harm at face value: Pointes, at para. 71; Volpe at para. 61. I am satisfied that United Wire has led evidence to support its damages claim in the range of that sought in the counterclaim. No doubt the issues of causation and damages will be highly contested at the trial of the action, but at this stage in the proceeding, I am satisfied that United Wire met its burden to show the harm was sufficiently serious: Catalyst, at para. 152.

[81] I must now weigh whether the public interest in allowing the counterclaim to proceed outweighs the public interest in protecting Mr. Kamranpoor’s expression.

[82] Mr. Kamranpoor’s expression in his statement of claim is worthy of protection. Indeed, his expression is protected by an absolute privilege. I do not think that the motive, manner, or quality of his expression disentitles him to protection. However, as set out above, the statements in the counterclaim do not relate to a matter of public interest.

[83] Assessing the context of this action and stepping back and assessing “what is really going on” with the counterclaim, I do not see it as an attempt to silence a former employee seeking recovery in a wrongful dismissal claim or to create a chilling effect for other employees. Case law has identified a number of indicia that can be brought to bear on this analysis: Pointes, at paras. 80 and 81.

[84] I do not see a history of United Wire using litigation or the threat of litigation to silence critics. Mr. Kamranpoor points to correspondence sent by United Wire to him and another employee as “silencing letters.” I disagree. Those letters simply remind the departed employees of their continuing obligations to preserve confidential information and to abide by their ongoing obligations around unfair competition. The letters sent by United Wire are entirely unremarkable and are the daily fare of employment lawyers in Ontario.

[85] Mr. Kamranpoor also points to United Wire’s response to his demand letter and characterizes that letter as threatening and designed to silence him. Again, I disagree. United Wire’s response must be viewed in light of Mr. Kamranpoor’s eight-page demand letter. The demand letter, which may be described as ambitious, makes a series of fairly inflammatory claims, including accusing United Wire of bad faith conduct. Mr. Kamranpoor may well be able to establish those claims at trial, but they certainly provide important context for United Wire’s response, which I do not find to be threatening or an attempt to silence Mr. Kamranpoor. This factor does not support granting the motion to dismiss the counterclaim.

[86] I accept that there will almost always be a financial imbalance between a terminated employee and their former employer. That factor is present here and would support dismissing the counterclaim.

[87] Unlike in Boyer, here there is more than a minimal link between Mr. Kamranpoor’s conduct and the damages allegedly suffered and United Wire has not acknowledged that its damages claim is entirely baseless: Boyer, at para. 54. Unlike in Boyer, I do not find that United Wire’s counterclaim was brought for a punitive or retributory purpose. This factor does not support granting the motion to dismiss the counterclaim.

[88] This is not a case where Mr. Kamranpoor has a history of activism in the public interest on these issues, where the counterclaim might have a chilling effect on future expression by Mr. Kamranpoor or others, or that the counterclaim might provoke hostility against an identifiably vulnerable group on one protected under s. 15(1) of the Charter or the Ontario Human Rights Code.

[89] Importantly, in my view, the litigation between Mr. Kamranpoor and United Wire will not be resolved if I grant Mr. Kamranpoor’s motion. Indeed, many of the material facts that underpin United Wire’s counterclaim also support its defence that Mr. Kamranpoor was terminated for just cause or after-acquired just cause. The very same issues will need to be litigated regardless of whether or not I grant the motion. Far from saving time and money, Mr. Kamranpoor’s motion has caused significant and unnecessary delay and expense. The reasoning of the Court of Appeal in Park Lawn applies to this case:

Lastly, the presence of a counterclaim will not inevitably preclude the granting of an anti-SLAPP motion. That said, an anti-SLAPP motion seeking to dismiss a counterclaim in whole or in part may ultimately add expense and delay, both of which are anathema to the purposes of s. 137.1. In this case, Park Lawn's action against the defendants will continue as will Kahu's counterclaim for damages for breach of contract regardless of the outcome of the anti-SLAPP motion. As the motion judge stated:

Remarkably, unlike most anti-SLAPP motions, if Park Lawn and Mr. Green's motion succeeds, the proceedings will not be done. Park Lawn's action will go forward, and it will seek to prove that what Mr. Green expressed to Funeral Service Insider was true. However, if the anti-SLAPP Motion succeeds, and Park Lawn fails to prove its case, Kahu Capital will be precluded from claiming damages [for] the harm caused to its reputation by Park Lawn's failure to prove that what Mr. Green said was true. An anti-SLAPP motion designed to suppress strategic litigation is being used very strategically and tactically: Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, at para. 58.

[90] Granting Mr. Kamranpoor’s motion would only have the effect of making it impossible for United Wire to recover its damages, it would not otherwise significantly affect the scope of the trial. United Wire may not be able to prove these damages at trial, but that is not the concern at this stage: Mondal, at para. 97.

[91] In my view, United Wire is not acting vindictively or strategically to silence Mr. Kamranpoor. The counterclaim should be allowed to proceed, and its merits left to the trial judge: Thorman, at para. 32; Pointes, at para. 81; Platnick, at para. 172. If, at the end of trial, the judge concludes that the counterclaim was meritless or merely tactical, the judge may find that the counterclaim justifies a significant costs order against United Wire: Giacomodonato v. PearTree Securities Inc., 2023 ONSC 5628.

[92] I find that the alleged harm suffered by United Wire is sufficiently serious that the public interest in permitting the counterclaim to continue outweighs the public interest in protecting Mr. Kamranpoor’s expression.

Conclusion and costs

[93] For the reasons set out above, the motion is dismissed.

[94] If the parties are not able to resolve costs of this action, United Wire may email its costs submission of no more than three double-spaced pages to my judicial assistant on or before November 24, 2023. Mr. Kamranpoor may deliver his responding submission of no more than three double-spaced pages on or before December 1, 2023. No reply submissions are to be delivered without leave.

Robert Centa J. Date: November 16, 2023