Court File and Parties

COURT FILE NO.: CV-19-626722-0000 DATE: 20230125 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MIRZA CHAUDHARY and MASUD RAJA, Plaintiffs AND: MUHAMMAD SHAHID, Defendant

BEFORE: VERMETTE J.

COUNSEL: Jonathan Rosenstein, for the Plaintiffs Thabang Pebane and Abdalla Ali Al-Baalawy, for the Defendant

HEARD: October 13, 2022

Endorsement

[1] The Defendant moves under subsection 137.1(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) for an order dismissing this action.

[2] In my view, this action meets the criteria under subsection 137.1(3) as this proceeding arises from an expression made by the Defendant that relates to a matter of public interest, and the Plaintiffs have failed to discharge their burden under subsection 137.1(4). As a result, this action is dismissed.

A. Factual Background

1. The parties and PTI Canada

[3] The Plaintiffs and the Defendant are members of the Pakistani Canadian community in the Greater Toronto Area (“Community”).

[4] On October 23, 2007, members of the Pakistani diaspora in Canada registered Pakistan Tehreek-e-Insaf Canada (“First PTI Canada”) as a not-for-profit corporation. Pakistan Tehreek-e-Insaf (“PTI”) is a political party in Pakistan founded by Imran Khan, who served as Prime Minister of Pakistan.

[5] First PTI Canada was dissolved on July 10, 2016. The Plaintiffs acted as directors and officers of First PTI Canada during part of its existence. The Defendant was a member of First PTI Canada from 2010 to 2013. In his affidavit, the Defendant expresses concerns regarding First PTI Canada’s corporate governance and alleged lack of financial disclosure and transparency.

[6] On January 8, 2018, a new not-for-profit corporation named PTI Canada was incorporated (“New PTI Canada”). Based on the Federal Corporation Information for New PTI Canada, the Plaintiffs are not directors of the new corporation.

2. Dam Fund

[7] In 2018, the Chief Justice of Pakistan (now retired) started an initiative to raise money to build dams in Pakistan (“Dam Fund”). Overseas Pakistanis were asked to contribute to the Dam Fund.

[8] On October 21, 2018, a “Pakistan Dam Funding Event” was held in Mississauga to support the Dam Fund (“Dam Fundraising Event”). Many members of the Community as well as Canadian Pakistanis from different parts of Canada attended the Dam Fundraising Event. The Defendant did not attend.

[9] According to the Defendant: (a) it was widely known in the Community and in the Pakistani diaspora community in other parts of Canada that First PTI Canada board members, including the Plaintiffs, were some of the organizers of the Dam Fundraising Event; and (b) it was reported in many Canadian Pakistani news media outlets that over $1 million were raised for the Dam Fund at the Dam Fundraising Event.

[10] The Dam Fund has an online registry. In his affidavit, the Defendant states that members of the Community were concerned after the Dam Fundraising Event about where the funds raised at the event went as there was no payment registered on the Dam Fund registry from Canada in the amount that was purportedly fundraised at the Dam Fundraising Event (i.e. over CAD$1,000,000).

3. Posts on Facebook

[11] On April 12, 2019, Mr. Irfan Elahi posted an image with added text in Urdu on a Facebook group page called “PTI Supporter”, which has over 47,000 members. The image appears to be an advertisement (in English) for a seminar organized by New PTI Canada. The advertisement contains photographs showing the faces of a number of people, including the Plaintiffs. The names of the people who appear in the photographs, including the Plaintiffs’ names, do not appear anywhere. While there is no certified translation before me of the text in Urdu that was added above the image of the advertisement, the translation prepared by the Defendant is as follows: “This is a group of thieves. On the name of Dam (fund), they have stolen $1.2 million. They are defaming name of PTI.”

[12] The Defendant’s evidence is that he does not know Mr. Elahi. However, when he saw his post, he decided to share it on his Facebook page, which he did on April 22, 2019 (“Post”). The Defendant states that the Post was not up for more than one and a half hours before he deleted it from his profile. The Defendant further states that: (a) he did not add any commentary to Mr. Elahi’s original post; (b) he did not tag anyone on the Post; (c) no-one liked the Post or made comments on it; [^1] and (d) to his knowledge, no one shared or reposted the Post. According to the Defendant, Mr. Elahi’s original post was still up on the PTI Supporter Facebook group page at the time the Statement of Defence was served in December 2019 and at the time of the Defendant’s examination for discovery in July 2021.

4. Notice of libel

[13] On May 3, 2019, the Plaintiffs’ counsel sent a letter/notice to the Defendant pursuant to subsection 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L.12 (“Notice”). The Notice states that the Post is defamatory and asks the Defendant to immediately place another post on his Facebook wall, tagged and linked as was the Post, in which he states that the Post was wrong, and the individuals in the photographs, including the Plaintiffs, did not steal any funds and have done nothing to shame PTI. This remedial post was to be left on the Defendant’s Facebook wall for no less than 30 days.

[14] The Defendant did not put the requested post on his Facebook wall.

B. The action

[15] This action was commenced on September 4, 2019. The Plaintiffs seek damages for defamation in an amount in excess of $240,000, to be particularized in advance of trial. They also seek an order requiring the Defendant to cause to be published a statement correcting his defamatory statements.

[16] The Plaintiffs allege that on April 22, 2019, the Defendant caused the Post to be published on Facebook. It is alleged in the Statement of Claim that the Post states the following:

a. “This [group depicted in the photographs] is a group of thieves”; b. the people in the photographs have stolen $1.2 million which had been donated to “construct the Dam” in Pakistan; and c. the people in the photographs have thereby shamed PTI.

[17] The Plaintiffs allege that the Post is defamatory. They plead that the contents of the Post are false with respect to them, and that the Defendant knew that the allegations in the Post were false when he made them.

[18] The Plaintiffs state that the Post came to their attention shortly after it was posted, and that it also came to the attention of many members of the public, including many members of the Community and PTI. The Plaintiffs allege that the Defendant knew or reasonably should have known that the Post would be widely circulated. The Plaintiffs also allege that the Defendant “tagged” the Plaintiffs and various people appearing in the photographs in order to increase the circulation and recipients of the Post.

[19] The Plaintiffs plead the following with respect to damages:

Unsurprising, many members of the public, the Community, and PTI believed the Post; or, at the very least, have developed a negative impression of Chaudhary and Raja.

This has caused significant and irreparable harm to Chaudhary's and Raja’s reputations, both personal and professional. The actual damages will be the subject of a damages report in advance of trial, but are expected to be in the many hundreds of thousands of dollars, if not millions.

In additional [sic] to actual damages, Chaudhary and Raja are entitled to aggravated and punitive damages because:

(a) Chaudhary and Raja are prominent members of the Community and PTI; (b) Falsely claiming the embezzlement of donated funds is a most serious defamation; (c) Posting the defamation on Facebook ensured that it would be widely disseminated and virtually impossible to eradicate completely; (d) Chaudhary and Raja, in the Notice, asked Shahid to create a new post on Facebook, explicitly rebutting the Post and correcting the misimpression created by the Post; however, Shahid has not made any effort to correct the impression created by the Post; and (e) Shahid created and posted the Post for the purpose of harming Chaudhary’s and Raja’s reputations, out of Shahid’s belief that this would be to his own benefit.

[20] The Defendant served his Statement of Defence on December 19, 2019. In it, he denies that the Post is defamatory and that he authored or published the Post. The Defendant points out that the Plaintiffs’ names are not referred to in the Post. In addition, he raises the defences of justification/truth and fair comment. He states that he acted without malice and innocently reposted/disseminated the post originally published by Irfan Elahi.

[21] The Defendant denies that the Plaintiffs suffered any damages as a result of the Post. He pleads the following:

Further, the Defendant Shahid, pleads that this action has been commenced against him with a vexatious and improper purpose to attempt to cause Mr. Shahid to stop speaking about or publishing any of his opinions. As stated herein, the original post by Elahi is still up, yet this action is being brought against Mr. Shahid, whose re-post was deleted by him the same day it was shared on his profile. Mr. Shahid claims that this claim amounts to a strategic lawsuit intended specifically to interfere with his rights to express his thoughts and opinions.

[22] The Defendant sought to bring a motion under subsection 137.1(3) of the CJA in late 2020. On November 14, 2020, Justice Sanfilippo made the following endorsement after the parties’ attendance at Civil Practice Court:

The Defendant, Muhammad Sahid [sic], requested the scheduling of an anti-SLAPP motion (Strategic Lawsuits Against Public Participation[)], under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The Defendant has requested three hours for this motion, 1.5 hours for each of the moving party and responding party Plaintiff.

The parties agreed on a timetable, which I will direct be implemented. As the timetable projects the hearing of this motion in March 2021, and as the Court is not currently booking motions beyond February 2021, I direct the parties to return to Civil Practice Court after the development of the evidentiary record to speak to the status of the motion and the scheduling for its hearing.

[23] There is no evidence before me as to whether and to what extent the parties complied with the timetable. However, the motion did not proceed in 2021. In oral argument, counsel for the Defendant stated that the motion was abandoned as the Defendant wanted to complete the examinations for discovery and assess the evidence.

[24] Examinations for discovery were conducted in March 2022. A mediation also took place in March 2022.

C. Evidence Filed on This Motion

[25] The Defendant swore an affidavit in support of his motion. He was cross-examined on his affidavit. The Plaintiffs also filed the transcript of the Defendant’s examination for discovery. The Plaintiffs did not provide any affidavit evidence.

[26] The Defendant gives the following evidence in his affidavit regarding the issue of public interest:

When I made the repost, my intention was to inform those who were members of PTI Canada, that monies that were claimed to be raised by former board members of PTI Canada, which includes the Second Board [which includes the Plaintiffs], were not reflecting [sic] on the Dam Fund Registry.

The GTA has a large Pakistani Community with a vested interest in the use of donation funds by PTI Canada. Many Pakistani individuals in the GTA donated (or may continue to donate) money to PTI Canada for the purposes of supporting PTI. The governing or ruling party in Pakistan is well known for promoting democracy, and anti-corruption. So long as PTI remains in power in Pakistan and has influence on the Pakistani community in the GTA, it is reasonable to expect individuals to continue making donations to PTI Canada and have a vested interested [sic] as to how those funds are allocated, accounted for, and spent.

Further, it is my position that paying members that belong to organizations such as PTI Canada, should be able to speak out against perceived injustices that are committed by board members, and should not be at risk of facing defamation lawsuits as a result of doing so. The Plaintiffs were essentially serving the Pakistani community in their capacity as former board members of PTI Canada, and thus, free and open dialogue ought to be fostered when there is an indication of financial mismanagement of donation funds. Based on the foregoing, it my position that repost ought to be considered as an expression in relation to a matter of public interest.

[27] The Defendant also expresses the view in his affidavit that the Plaintiffs’ damages are, at most, nominal and that to date, the Plaintiffs have failed to provide any evidence that could substantiate that either of them sustained harm.

D. Discussion

1. Timing of the Defendant’s motion

[28] As noted by the Plaintiffs in their Factum, subsection 137.1(3) does not impose any time limit on when a motion under that section can be brought. However, the Plaintiffs complain that the Defendant brought his motion late in the litigation process, after examinations for discovery have taken place and when the action is allegedly ready for trial. The Plaintiffs also complain that the Defendant took steps to bring a motion under section 137.1 in 2020 but later decided not to proceed.

[29] Subsection 137.2(1) of the CJA states that a motion to dismiss a proceeding under section 137.1 “may be made at any time after the proceeding has commenced.” [Emphasis added.] Given this clear statement in the statutory provision, I find that the Plaintiffs’ complaints about the timing of the motion are without merit.

2. Test under section 137.1 of the CJA

[30] Sections 137.1 to 137.5 of the CJA came into force in November 2015. These provisions were enacted to mitigate the harmful effects of strategic lawsuits against public participation (also known as “SLAPPs”). SLAPPs are lawsuits initiated against individuals or organizations that speak out or take a position on an issue of public interest. They are generally initiated by plaintiffs who engage the court process and use litigation not as a direct tool to vindicate a bona fide claim, but as an indirect tool to limit the effectiveness of the opposing party’s speech and deter that party, or other potential interested parties, from participating in public affairs. See 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 at paras. 2-4 (“Pointes”).

[31] Subsections 137.1(1), (2), (3) and (4) of the CJA provide as follows:

Dismissal of proceeding that limits debate Purposes

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.

Definition, “expression”

(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.

Order to dismiss

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

No dismissal

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(a) there are grounds to believe that, (i) the proceeding has substantial merit, and (ii) the moving party has no valid defence in the proceeding; and (b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

[32] In Pointes, the Supreme Court of Canada explained as follows the framework set out in section 137.1 of the CJA (at paragraphs 27, 28, 31, 49, 54, 60, 82):

a. Threshold burden on the moving party. Subsection 137.1(3) places a threshold burden on the moving party to show on a balance of probabilities that: (i) the underlying proceeding does, in fact, arise from its expression, regardless of the nature of the proceeding, and (ii) such expression relates to a matter of public interest, defined broadly. With respect to (ii), it must be asked whether some segment of the community would have a genuine interest in receiving information on the subject. There is no qualitative assessment of the expression at this stage. To the extent that the burden under subsection 137.1(3) is met by the moving party, then s. 137.1(4) is triggered and the burden shifts to the responding party to show that its underlying proceeding should not be dismissed.

b. Substantial merit. To discharge its burden under s. 137.1(4)(a)(i), the plaintiff must satisfy the motion judge that there are grounds to believe that its underlying claim is legally tenable and supported by evidence that is reasonably capable of belief such that the claim can be said to have a real prospect of success. A real prospect of success is a prospect of success that, while not amounting to a demonstrated likelihood of success, tends to weigh more in favour of the plaintiff.

c. No valid defence. Under s. 137.1(4)(a)(ii), the moving party (i.e. defendant) must put potential defences in play, and the responding party (i.e. plaintiff) must show that none of those defences are valid in order to meet its burden. Mirroring the “substantial merit” prong, the “no valid defence” prong requires the plaintiff to show that there are grounds to believe that the defences have no real prospect of success.

d. Weighing of the public interest. Under s. 137.1(4)(b), the burden is on the plaintiff to show on a balance of probabilities that it likely has suffered or will suffer harm, that such harm is a result of the expression established under s. 137.1(3), and that the corresponding public interest in allowing the underlying proceeding to continue outweighs the deleterious effects on expression and public participation. This weighing exercise is the crux or core of the s. 137.1 analysis, as it captures the overarching concern of the legislation, as evidenced by the legislative history. It accordingly should be given due importance by the motion judge in assessing a motion under section 137.1.

[33] The “grounds to believe” standard in subsection 137.1(4)(a) requires a basis in the record and the law – taking into account the stage of the litigation – for finding that the underlying proceeding has substantial merit and that there is no valid defence: see Pointes at para. 39. In Bent v. Platnick, 2020 SCC 23 at para. 88 (“Bent”), the majority of the Supreme Court of Canada stated the following with respect to this standard:

I elaborate here that, in effect, this means that any basis in the record and the law will be sufficient. By definition, “a basis” will exist if there is a single basis in the record and the law to support a finding of substantial merit and the absence of a valid defence. That basis must of course be legally tenable and reasonably capable of belief. But the “crux of the inquiry” is found, after all, in s. 137.1(4)(b), which also serves as a “robust backdrop” for protecting freedom of expression: Pointes Protection, at paras. 48 and 53. [Emphasis in the original.]

[34] Thus, with respect to the no valid defence prong: (a) the plaintiff must show that there are grounds to believe that the defendant’s defences have no real prospect of success; (b) this requires a showing that there are grounds to believe that the defences do not tend to weigh more in favour of the defendant; (c) in light of the definition of “grounds to believe”, this means that there must be a basis in the record and the law – taking into account the stage of the proceeding – to support a finding that the defences do not tend to weigh more in favour of the defendant. See Bent at para. 103.

[35] The weighing exercise under subsection 137.1(4)(b) requires two showings: (1) the existence of harm, which can be either monetary or non-monetary; and (2) causation. Evidence of a causal link between the expression and the harm is especially important where there may be sources other than the defendant’s expression that may have caused the plaintiff harm. See Pointes at paras. 68, 69 and 72. The Supreme Court stated the following in Pointes at para. 71 regarding this prong of the test:

This does not mean that the harm pleaded by the plaintiff should be taken at face value or that bald assertions are sufficient. But I would not go so far as to require a fully developed damages brief, nor would I require that the harm be monetized, as the question here relates to the existence of harm, not its quantification. The statutory language employed in s. 137.1(4)(b) is “harm likely to”, which modifies both “be” and “have been”; this indicates that the plaintiff need not prove harm or causation, but must simply provide evidence for the motion judge to draw an inference of likelihood in respect of the existence of the harm and the relevant causal link. The evidentiary burden might depend on the nature of the substantive law that is applied, although it must be borne in mind that a s. 137.1 motion is not an adjudication on the merits: for example, in a defamation action, harm (and therefore general damages) is presumed, but the plaintiff would still have to support a claim for special damages. Importantly, though, no definitive determination of harm or causation is required.

[36] I now turn to the application of the test to the facts of this case.

3. Whether the proceeding arises from an expression made by the Defendant that relates to a matter of public interest

[37] In my view, the Defendant’s Post constitutes an expression that relates to a matter of public interest, and this proceeding arises from that expression.

[38] A post on Facebook is captured by the definition of “expression” in subsection 137.1(2).

[39] Interpreted broadly, the Post raises concerns regarding the management of funds raised for a charitable purpose. This is a matter of public interest. I find that some segment of the community, including the Community and those who made donations to First PTI Canada, New PTI Canada or at the Dam Fundraising Event, would have a genuine interest in receiving information on the subject. Whether the Post’s allegations and the Defendant’s concerns are valid “is beside the point” as there is no qualitative assessment of the expression at this stage: see Bent at para. 84.

[40] Therefore, I find that the Defendant has met his threshold burden under subsection 137.1(3) of the CJA.

4. Whether there are grounds to believe that the proceeding has substantial merit

[41] The test for defamation requires that three criteria be met (see Bent at para. 92):

a. the words complained of were published, meaning that they were communicated to at least one person other than the plaintiff; b. the words complained of referred to the plaintiff; and c. the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person.

[42] Based on the evidence before me, I conclude that there are grounds to believe that, absent a valid defence, the proceeding has substantial merit.

[43] The words complained of were published in that they were posted on Facebook where other people could see the Post on the Defendant’s wall.

[44] While the names of the Plaintiffs were not expressly mentioned in the Post, their photographs were included, and the text and accusations written in Urdu appear to refer to the people who are shown in the photographs contained in the Post.

[45] Finally, the words in the Post are defamatory as they would tend to lower the Plaintiffs’ reputation in the eyes of a reasonable person. An allegation that someone has stolen money given and dedicated for a charitable purpose is a very serious one: see Nassri v. Homsi, 2017 ONSC 4554 at para. 22.

[46] In light of the foregoing, I find that the Plaintiffs’ claim as against the Defendant has a real prospect of success.

5. Whether there are grounds to believe that the Defendant has no valid defence in the proceeding

[47] The Defendant has raised two defences in his Statement of Defence: justification and fair comment.

a. Justification

[48] To succeed on the defence of justification, a defendant must adduce evidence showing that the statement was substantially true: see Grant v. Torstar Corp., 2009 SCC 61 at para. 33 (“Torstar”). The burden on the defendant is to prove the substantial truth of the “sting” or main thrust of the defamation. If the sting of the words is justified on the evidence, minor accuracies will not prevent the defendant from establishing a defence of justification. Conversely, the defence of justification will fail if the publication in issue is shown to have contained only accurate facts but the sting of the libel is not shown to be true. See Bent at para. 107.

[49] While a defendant would have to lead evidence that the impugned statements are substantially true in order for their defence of justification to succeed at trial, on a motion under section 137.1 of the CJA, the plaintiff must show that there are grounds to believe that the defendant has no real prospect of success in making that showing. See Bent at para. 109.

[50] As stated above, the Plaintiffs did not provide any affidavit evidence on this motion. Among other things, they have not given any evidence that the words in the Post are untrue. I find this troubling, especially given the late stage of this proceeding. As stated by the Supreme Court of Canada in Pointes at paragraph 38, “the parties are expected to put forward a record, commensurate with the stage of the proceeding at which the motion is brought, that lends itself to the inquiry mandated under s. 137.1(4)(a).” Although there is no adjudication of the issues on a motion under section 137.1, the criteria under subsection 137.1(4)(a) necessarily entail an inquiry that goes beyond the parties’ pleadings.

[51] The Plaintiffs appear to rely on the transcripts of the examination for discovery and cross-examination of the Defendant and his answers to undertakings [^2] to argue that the Defendant will be unable to prove the truth of the contents of the Post. Generally speaking, the examination for discovery and cross-examination of the Defendant show that he does not have any direct knowledge or evidence with respect to the statements in the Post. However, there may be some evidence supporting his case in part. For example, the Defendant seems to rely heavily on an interview that he saw with the Plaintiff Mirza Chaudhary (in Urdu) in support of his position that the Plaintiffs were involved in the organization of the Dam Fundraising Event. Neither a recording of the interview nor an English translation of the interview was filed by any party. While it appears from the cross-examination of the Defendant on his affidavit that counsel for the Plaintiffs was of the view that it was the Defendant’s burden to adduce evidence (including an English translation) about this interview, the Defendant does not have any onus under subsection 137.1(4)(a)(ii).

[52] The Defendant may have additional evidence and witnesses at trial. [^3] In addition, the Defendant may be able to establish some of his allegations through cross-examination of the Plaintiffs. I note, however, that during oral argument, counsel for the Defendant stated that the allegations contained in the Post “may not have been true”. The Defendant’s focus at the hearing was on subsection 137.1(4)(b), i.e. whether harm outweighs the public interest in protecting the expression.

[53] As stated above, under the no valid defence prong of the test, the Plaintiffs must show that there are grounds to believe that the Defendant’s defences have no real prospect of success, and this requires a showing that there are grounds to believe that the defences do not tend to weigh more in favour of the Defendant. In light of the definition of “grounds to believe”, this means that there must be a basis in the record and the law – taking into account the stage of the proceeding – to support a finding that the defences do not tend to weigh more in favour of the Defendant.

[54] The Plaintiffs appear to have misunderstood the burden of proof that was on them under subsection 137.1(4)(a)(ii). However, based on the transcripts of the examination for discovery and cross-examination of the Defendant, I find that they barely meet their onus of showing that there are grounds to believe that the defence of justification does not tend to weigh more in favour of the Defendant.

b. Fair comment

[55] A defendant claiming fair comment must satisfy the following test (see Torstar at para. 31):

a. the comment must be on a matter of public interest; b. the comment must be based on fact; c. the comment, though it can include inferences of fact, must be recognisable as comment; d. the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?; and e. even though the comment satisfies the objective test, the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice.

[56] If the factual foundation for the comment is unstated or unknown, or turns out to be false, then the fair comment defence is not available. See WIC Radio Ltd. v. Simpson, 2008 SCC 40 at para. 31.

[57] The parties did not address the fair comment defence in their submissions. However, given that this defence only applies if the comment in issue is founded on true facts, the observations set out above regarding the defence of justification apply to the defence of fair comment as well.

6. Whether the harm outweighs the public interest in protecting the expression

[58] Harm is principally important in order for a plaintiff to meet their burden under subsection 137.1(4)(b). As stated above, the statutory language requires two showings: (i) the existence of harm and (ii) causation – i.e. the harm was suffered as a result of the moving party’s expression. Either monetary harm or non-monetary harm can be relevant. See Pointes at paras. 68-69.

[59] The Plaintiffs have adduced no evidence of harm on this motion. They appear to rely on the fact that harm (and therefore general damages) is presumed in a defamation action and on the seriousness of the accusations in the Post, i.e. the Plaintiffs have been accused of stealing charitable funds. I note, however, that the Supreme Court of Canada stated the following in Bent at paragraph 144:

General damages are presumed in defamations actions, and this alone is sufficient to constitute harm: Pointes Protection, at para. 71; Torstar, at para. 28. However, the magnitude of the harm will be important in assessing whether the harm is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression: Pointes Protection, at para. 70. General damages in the nominal sense will ordinarily not be sufficient for this purpose. [Emphasis added.]

[60] Further, there is no evidence of causation and no evidence from which I can draw an inference of likelihood in respect of the existence of a causal link. The Defendant’s evidence that he deleted the Post after 1.5 hours is uncontested, and so is his evidence that Mr. Elahi’s post is still active on the Facebook group “PTI Supporter” that has more than 47,000 members. There is no direct evidence before me that anyone has seen the Post. There is also no evidence about how many people could potentially have seen it (e.g., What were the privacy settings on the Defendant’s page? How many Facebook friends does he have? etc.). In addition, there is no evidence that the Plaintiffs have taken any steps regarding Mr. Elahi’s post.

[61] In Pointes, at paragraph 80, the Supreme Court stated that the following factors may be relevant to consider when weighing the public interest: the importance of the expression, the history of litigation between the parties, broader or collateral effects on other expressions on matters of public interest, the potential chilling effect on future expression either by a party or by others, the defendant’s history of activism or advocacy in the public interest, any disproportion between the resources being used in the lawsuit and the harm caused or the expected damages award, and the possibility that the expression or the claim might provoke hostility against an identifiably vulnerable group or a group protected under section 15 of the Canadian Charter of Rights and Freedoms or human rights legislation.

[62] The traditional four indicia of a SLAPP may also bear on the analysis. These indicia are: (1) a history of the plaintiff using litigation or the threat of litigation to silence critics; (2) a financial or power imbalance that strongly favours the plaintiff; (3) a punitive or retributory purpose animating the plaintiff’s bringing of the claim; and (4) minimal or nominal damages suffered by the plaintiff. See Pointes at para. 78. However, the Supreme Court has stated that these factors/indicia may only bear on the analysis to the extent that they are tethered to the text of the statute and the considerations explicitly contemplated by the legislature: see Pointes at para. 79. Thus, the fact that this action may not have the traditional indicia of a SLAPP is not determinative.

[63] In light of the evidence before me, I find that the Plaintiffs have failed to establish that the harm that they have suffered or are likely to suffer as a result of the Post is harm that is sufficiently serious to outweigh the public interest in protecting the expression and public participation.

[64] The Plaintiffs have not adduced any evidence of a causal link between any harm they may have suffered and the Post which was deleted after 1.5 hours. This is significant in light of the fact that there are other sources of harm to the Plaintiffs’ reputation, including Mr. Elahi’s original post which is still active. Given this and the absence of any evidence of harm aside from the legal presumption, I have to conclude that the Plaintiffs’ harm is minimal.

[65] This is insufficient to outweigh the public interest in protecting the expression in issue. It is true that the Post made serious allegations and that the Defendant’s concerns could have been more carefully worded. However, the following factors are relevant in assessing the public interest in this case: (a) the subject matter of the expression, i.e. the proper management of funds raised for charitable purposes, is a matter of public interest that is not trivial; (b) the Defendant has a history of advocating for more financial transparency within the Community and First PTI Canada; (c) as illustrated by the Defendant’s affidavit evidence, allowing this proceeding to continue could have a chilling effect on future expression within the Community on financial transparency and other issues; and (d) there is only evidence of minimal damages suffered by the Plaintiffs, leading to an apparent disproportion between the harm caused and the resources being used in the lawsuit.

[66] Thus, in the absence of evidence of harm caused by the Post that goes beyond minimal damages, I conclude that the Plaintiffs have failed to show that the harm that they are likely to suffer or have suffered as a result of the Defendant’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the deleterious effects on expression and public participation.

E. Conclusion

[67] The Defendant’s motion is granted and the action is dismissed.

[68] Subsection 137.1(7) of the CJA provides that if a judge dismisses a proceeding under section 137.1, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances. Thus, an unsuccessful party can argue that a full-indemnity costs award is not appropriate in the circumstances of a particular case. In addition, an unsuccessful party can make submissions on quantum (e.g. time spent).

[69] If costs cannot be agreed upon, the Defendant shall deliver submissions of not more than three pages (double-spaced), excluding the costs outline, by February 8, 2023. The Plaintiffs shall deliver their responding submissions (with the same page limit) by February 22, 2023. The submissions of all parties shall also be sent to my assistant by e-mail and uploaded onto CaseLines.

Vermette J. Date: January 25, 2023

Footnotes

[^1]: The transcript of the examination for discovery of the Defendant suggests that there may have been comments on the Post, including comments by the Defendant in response to comments made by others. However, the document about which the Defendant was asked questions during his examination for discovery is not before me on this motion. [^2]: The answers to undertakings were not filed on the motion. [^3]: I note, however, that the following undertakings were given: (a) to provide a list of all the witnesses that the Defendant was planning to call at trial who were going to testify that it was widely known that the Plaintiffs were involved in the organization of the Dam Fundraising Event, and (b) to produce all written evidence that the Defendant intended to rely on to prove the same proposition. In response to these undertakings, it appears that the Defendant provided the names of two witnesses and indicated that the evidence that he was relying upon was the interview with Mr. Chaudhary.