COURT FILE NO.: CV-2000653007-0000
DATE: 20231204
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JIANG ZHU
Plaintiff
– and –
YIGONG PANG also known as YI GONG PANG, YONG QI, JUNCHANG YANG also known as JUN CHANG YANG, DING CHUO LIU also known as DINGCHUO LIU also known as MICHELLE LIU, and CYBERMEDIA NETWORK INC.
Defendants
Christopher P. Goldson, for the Plaintiff
Andrew Jia, for the defendants Yi Gong Pang, Yong Qi, Ding Chuo Liu
Jason Huang-Kung, for the defendant Cybermedia Network Inc.
HEARD: September 19, 2023
Papageorgiou J.
Overview
[1] The Council of Newcomer Organizations (“CONCO”) is a non-profit organization. It hosts various events throughout the year related to Chinese culture and seeks to help new immigrants from across China integrate into Canadian life.
[2] CONCO has 29 Member Associations. These Member Associations represent individuals in Canada whose families originated from various Chinese geographic areas. Each of these Member Associations have their own WeChat groups where the Member Presidents communicate about issues related to CONCO (the “Member’s WeChat”).
[3] All of the individuals who serve on the Executive Committee are volunteers.
[4] The plaintiff Jiang Zhu was CONCO’s Executive Chairman and the individual defendants were Co-Chairmen.
[5] The individual defendants posted messages on the Member’s WeChat related to alleged lack of financial transparency, election manipulation and violations of CONCO’s Constitution/Bylaws[^1]. One of these messages was also posted on Cybermedia Network Inc.’s websites (“Cybermedia”).
[6] Cybermedia is a media company hosting two Chinese-language websites serving the Chinese-Canadian community in Canada for social news aggregation, web content sharing and discussion about a wide variety of topics. It has two websites known as Creaders and BcBay.
[7] Mr. Zhu has sued the defendants alleging that these communications were defamatory.
[8] The defendants allege that the dominant purpose of Mr. Zhu’s action against them is to limit public participation on matters of public interest. They say that this action seeks to quell vital, vigorous debate on the administration of a public-interest, publicly-funded organization and the very speech needed to further the goals of democracy, freedom of expression, and transparency in matters of public interest.
[9] They bring a motion to dismiss this action pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “Act”), colloquially known as the “anti-SLAPP regime”.
[10] The anti-SLAPP regime was enacted to prevent parties from misusing the judicial system or other agencies of justice who bring proceedings for strategic reasons. In 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at para. 2, the Supreme Court described strategic lawsuits against public participation (“SLAPPs”) as:
lawsuits initiated against individuals or organizations that speak out or take a position on an issue of public interest. SLAPPs are generally initiated by plaintiffs who engage the court process and use litigation not as a direct tool to vindicate a bona fide claim, but as an indirect tool to limit the expression of others. In a SLAPP, the claim is merely a façade for the plaintiff, who is in fact manipulating the judicial system in order to limit the effectiveness of the opposing party’s speech and deter that party, or other potential interested parties, from participating in public affairs.
Decision
[11] For the reasons that follow, I am granting the motion and dismissing this action.
Issues
[12] There is a shifting burden in an anti-SLAPP motion, with the defendants having the initial burden. In arriving at my decision, I have considered the following issues, which track the test set out in s. 137.1 and reflect this shifting burden:
• Issue 1: Have the defendants satisfied their onus of establishing that this proceeding arises from an expression that “relates to a matter of public interest”?
• Issue 2: Has the plaintiff satisfied his onus of showing that he has grounds to believe that this proceeding has “substantial merit”?
• Issue 3: Has the plaintiff satisfied his onus of showing grounds to believe that the defendants have no valid defence? Here I discuss the defences of qualified privilege, justification, fair comment and responsible communication.
• Issue 4: Has the plaintiff shown grounds to believe that the harm “likely to be suffered” by him is sufficiently serious such that the public interest in allowing the proceeding to continue outweighs the public interest in protecting that expression (the “public interest hurdle”)?
[13] As will be seen, and by way of overview, the defendants’ evidence was supported with documentary evidence as well as the evidence of independent witnesses.
[14] However, Mr. Zhu’s evidence was primarily bald assertions. Although the Co-Chairs and the Chairmen as well as the President Associations communicated by WeChat, and there are several instances where he alleges he provided information to these parties or obtained their consent, Mr. Zhu did not provide evidence of WeChat communications that supported this. Here I point out, and it is relevant to all the instances where there is a lack of corroborating WeChat evidence, Mr. Zhu acknowledged that he had WeChat logs but his counsel refused to let him answer with whom he has these logs, how far back they go, whether he has the same phone as in 2018 or whether he retained logs from 2018 to present.
[15] As well, it should be kept in mind that because of various delays which I will discuss, Mr. Zhu did not seek to complete his evidence until his last affidavit was sworn on February 15, 2023. Thus, almost three years had passed since the impugned statements. One would expect that given the stage of the proceeding, if Mr. Zhu were serious about this action as a means of clearing his name, he would have done more to press forward and/or obtain better evidence to challenge the defendants’ defences or to establish the alleged harm to him.
[16] As well, in argument and Mr. Zhu’s factum, he made reference to several pieces of evidence which he said supported his position, such as portions of the cross-examination of the defendants. However, when the actual evidence was reviewed, it did not really say what was alleged.
[17] Finally, Mr. Zhu placed in the public eye many of the allegations that he says are defamatory before the Defendants ever did.
Analysis
Issue 1: Have the defendants satisfied their onus of establishing that this proceeding arises from an expression that “relates to a matter of public interest”?
[18] The short answer is yes. I will explain.
[19] To satisfy the threshold burden, the defendants must show on a balance of probabilities that (i) the proceeding arises from an expression made by them, and (ii) the expression relates to a matter of public interest: Pointes Protection, at para. 23.
[20] There is no question that this proceeding arises from an expression made by the defendants.
[21] Regarding whether the expression relates to a matter of public interest, the Supreme Court held that the concept of “public interest” must be given a “broad and liberal interpretation”: Pointes Protection, at paras. 26, 28. In determining what constitutes “public interest”:
The expression should be assessed “as a whole”, and it must be asked whether “some segment of the community would have a genuine interest in receiving information on the subject” (paras. 101-2). While there is “no single ‘test’”, “[t]he public has a genuine stake in knowing about many matters” ranging across a variety of topics (para 27).
[22] It is important to understand some further background facts to consider whether the impugned statements concern a matter of public interest.
[23] CONCO’s Constitution provides for an Executive Committee with a maximum limit of seven individuals. These Executive Committee members are elected from the Member Associations every two years. The Executive Committee then selects an Executive Chairman, and the remaining six become Co-Chairmen. The Executive Committee has a term limit of two years.
[24] Mr. Zhu was elected Executive Chairman in 2018 and his term was set to expire on August 18, 2020.
[25] Sometime during the summer of 2020, the defendant Mr. Pang determined that he would run for the position of Executive Chairman. Mr. Jialiang Han was running against him. There is evidence that Mr. Zhu supported Mr. Han’s election as Executive Chairman.
[26] It is uncontradicted that one of the existing Co-Chairmen, Ms. Ying Yu, was unable to vote because her term was up on August 15, 2020, and the election was scheduled to take place on August 16, 2020. She wanted the date changed.
[27] It is uncontradicted that on or about July 27, 2020, Mr. Zhu and other Co-Chairmen Mr. Yang, Mr. Xing, Ms. Yu and also Mr. Han held an evening meeting where they changed the date of the election from August 16 to August 15, 2020 so that Ms. Yu could vote. The individual defendants were not present at this meeting although they had been invited.
[28] There is a WeChat message from Ms. Yu where she states that the date was changed on the condition that she vote for the people in attendance at this meeting. Although this is hearsay, hearsay is permitted in motions pursuant to r. 39.01.(4).
[29] For reasons which will become more apparent in the section on justification, the defendants formed the view that Mr. Zhu had a six-year plan which involved the election of Mr. Han as Executive Chairman for two years, followed by a change to CONCO’s Constitution that would permit Mr. Zhu to subsequently stand for re-election. The individual defendants formed the view that the election date was changed to ensure that Ms. Yu would be able to vote and would vote for who they believed Mr. Zhu’s preferred candidate to be, Mr. Han. As noted, he was present at the evening meeting held on July 27, 2020.
[30] They also formed views about the general operations of CONCO during Mr. Zhu’s tenure as Co-Chairman.
[31] The defendants posted a series of messages in the Member’s WeChat:
• On August 1, 2020, Mr. Pang resigned from the Executive Committee and posted a message in the Member’s WeChat in protest over “election manipulation, lack of financial transparency, and violations of CONCO’s Constitution.”
• On August 3 and 12, 2020, Mr. Pang posted further messages about these issues in the Member’s WeChat.
• On August 4, 2020, Mr. Qi posted messages in the Member’s WeChat, also about these issues.
• On or about August 13, 2020, part of Mr. Pang’s August 1 WeChat message was leaked to a Chinese news media, 51.ca, and Mr. Zhu gave an interview to 51.ca about some of the issues alleged by Mr. Pang. Mr. Zhu set out his position on these issues in this interview which was then published by 51.ca.[^2]
• On August 18, 2020, the individual defendants posted a document titled “Declaration: Withdraw from the Council of Newcomer Organizations” on the Member’s WeChat. This Declaration was also published on Cybermedia’s webpage. This Declaration repeated and/or summarized the expressions of the same nature as those set out in the previous WeChat messages by Mr. Pang and Mr. Qi.
[32] The impugned expressions when placed in their context and taken as a whole concern a matter of public interest for the following reasons:
• CONCO is a public-interest, non-profit organization. Its entire mandate is for public and social benefit.
• The expressions at issue concern CONCO’s election procedures and criticisms of Mr. Zhu’s management as Executive Chair.
• The essence of the expressions at issue concerns the governance of a public-interest, non-profit organization which is in receipt of public funding: see Niagara Peninsula Conversation Authority v. Smith, 2017 ONSC 6973, 45 C.C.L.T. (4th) 146, at paras. 54-55.
• When cross examined, Mr. Zhu admitted that CONCO is prominent and does important work in the Chinese community. He admitted that it was in receipt of public funds, that it was important for CONCO to be run in a transparent manner, and that the public had a “strong” interest in knowing how taxpayer dollars are spent, and how non-profit organizations are run in terms of finance and governance.
• When cross examined, Mr. Zhu also admitted that it is important for the public to know that elections at CONCO are run fully, freely and fairly.
• CONCO’s actions and policies have been the subject of public discourse both before and after the impugned expressions. The media and Amnesty International have raised the same issue of politization of CONCO which has been raised by the impugned expressions.
Issue 2: Has Mr. Zhu satisfied his burden of showing that he has grounds to believe that this proceeding has “substantial merit”?
[33] I find that he has.
[34] Once a court finds that the moving defendants have met their burden, the onus shifts to the plaintiff to show there are grounds to believe the claim has substantial merit. The plaintiff must show that there is a basis in the record and the law to say that he has a “real prospect” of success: Pointes Protection, at para. 49.
[35] The term “grounds to believe” means “a basis in the record and law — taking into account the stage of litigation at which a s. 137.1 motion is brought”: Pointes Protection, at para. 39. A “basis in the record and law” will exist even if there is only a single basis: Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 88. The term “substantial merit” means that an action must have “a real prospect of success” that weighs more in his favour and which is “legally tenable and supported by evidence that is reasonably capable of belief”: Pointes Protection, at para. 49 & 50.
[36] Thus, to satisfy this initial burden, Mr. Zhu must show grounds to believe that his defamation claim has substantial merit. Defamation requires proof of the following elements:
(i) the defendant published the words complained of, meaning they were communicated to at least one person other than the plaintiff;
(ii) the words complained of refer to the plaintiff; and
(iii) the impugned words were defamatory in the sense that they could and would tend to reduce his reputation in the mind of a reasonable person: Torstar, at para. 28.
[37] There is no question that Mr. Zhu can satisfy the first and second elements.
[38] With respect to the third element, I am satisfied that there are grounds to believe that the impugned statements could and would reduce Mr. Zhu’s reputation in the mind of a reasonable person; the expressions at issue relate to a lack of transparency of CONCO’s operations while Mr. Zhu was its Executive Chair, that he engaged in election manipulation for his own personal purposes and violated CONCO’s Constitution/By-Laws.
Issue 3: Has the plaintiff satisfied his onus of showing grounds to believe that the defendants have no valid defence?
[39] I find that Mr. Zhu has not met this burden.
[40] The second prong of s. 137.1(4)(a) of the Act requires Mr. Zhu to show that there are “grounds to believe that the defences have no real prospect of success”: Pointes Protection, at para. 60. 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 [the defendants’] favour”: Bent, at para. 103 (italics in original; underlining added).
a) Qualified Privilege
[41] In Bent, the Supreme Court explained, at para. 121, that the defence of qualified privilege relates not to the actual details of the expression made, but rather the occasion on which it was made. Determination of whether an occasion of privilege exists involves consideration of whether the person who made the statement had “an interest or duty, legal, social, moral or personal, to whom [the statement is made] and the person to whom it is so made has a corresponding interest or duty to receive it”: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130 at para 143.
[42] The privilege is not based on free expression but social utility in protecting particular communications from civil liability: Bent, at para. 124. As noted by the Supreme Court in Torstar, at para. 30, qualified privilege reflects “the fact that ‘common convenience and welfare of society’ sometimes requires untrammeled communications. The law acknowledges through recognition of privileged occasions that false and defamatory expression may sometimes contribute to desirable social ends” (citations omitted). The threshold is high.
[43] Besides the Declaration made on August 18, 2020, which was also posted on a public website, all the allegedly defamatory statements were made to the Member’s WeChat and received by approximately 29 Member Presidents.
[44] The individual defendants say that they made their posts because they had a moral and social duty to provide the information contained in their posts to the other Co-Chairmen and Member Presidents and that these parties had a duty and interest in receiving these communications. Indeed, the very purpose of the WeChat group was to discuss the governance of CONCO and these WeChat messages related to that.
[45] When cross-examined, Mr. Zhu acknowledged:
• it was both a right and a responsibility of the Co-Chairmen to discuss or report anything related to the governance of CONCO to the Member Associations and other Co-Chairmen through the WeChat groups.
• if he were a Co-Chairman and someone was not being transparent with the finances, he would want to know about it, stating that each Co-Chairman had both the right and the obligation.
• if someone were changing the election procedures, he would want to know and others in the group with also have the right to know.
[46] Although Mr. Zhu’s counsel made the statement that the contents of these messages went beyond what was reasonably germane and appropriate, relying on Douglas v. Tucker, 1951 CanLII 54 (SCC), [1952] 1 S.C.R. 275, he did not say how. It was Mr. Zhu’s burden to make a logical argument about why the WeChat messages at issue did so, which he failed to do.
[47] Thus, subject to the issue of malice which I discuss below and which could defeat the defence of qualified privilege, Mr. Zhu has failed to establish that there are grounds to believe that the defence of qualified privilege does not tend to weigh more in favour of the defendants with respect to the WeChat messages, other than the Declaration.
[48] There is no basis for qualified privilege with respect to the Declaration posted to Cybermedia because it was published widely and not merely to the Member Presidents.
[49] Having determined that Mr. Zhu has failed to establish that the defence of qualified privilege does not tend to weigh more in favour of the defendants with respect to the WeChat messages of August 1, 3, 4 and 12, there is no need to consider whether Mr. Zhu has established grounds to believe that the remaining defences do not tend to weigh more in favour of the defendants with respect to these messages.
[50] In the sections below, I examine the defences of justification, fair comment, and responsible communication with respect to the Declaration.
b) Justification
[51] I have concluded that Mr. Zhu has not met his burden with respect to the Declaration.
[52] In arriving at this conclusion, I have examined the test for justification, the main sting of the Declaration as well as the evidence led by all parties in support of the truth or falsity of the expressions therein.
The test for justification
[53] To succeed in a defence of justification, a defendant must prove the substantial truth of the “sting”, or the main thrust, of the defamation. In other words, “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”: Bent, at para. 107.
[54] The Statement of Claim references the Declaration[^3] which stated as follows:
We solemnly announce our withdrawal from the Federation of Chinese Canadian Associations as of today. The reasons are as follows:
I. Election Rigging
JIANG ZHU, Executive Chairman of the Federation of Chinese Canadian Associations and President of the Xinjiang Association of Canada, wanted to amend the By-Laws of the Federation to seek a re-election, but during his exploratory consultation process, he knew that violating the By-Laws would certainly be opposed by some people, so he gave up his intention to be re-elected next term. Then a six-year plan was developed: the next successor would be the one to change the By-Laws and abolish the non-reelection system. He will be then elected the term after the next, for two consecutive terms. For that he needed someone he was comfortable with as the next Executive Chairman. Therefore, the election was rigged and JIALIANG HAN, current Treasurer of the Federation of Chinese Canadian Associations and President of the Shanxi Communities in Canada, was appointed as the successor.
During the canvassing campaign, JIALIANG HAN openly claimed to other presidents that he had no intention to run for the Executive Chairman, but it was JIANG ZHU who insisted him to run in order to prevent President PANG from being elected as the next Executive Chairman.
For the schedule of the new term election, JIANG ZHU was prepared to serve as the election presiding officer, violating the convention that the outgoing Executive Chairman does not preside over the election. He wanted to personally comment on the executive chairs and co-chairs who would be running for the position, to sway people to vote.
II. Financial Opaqueness
The financial affairs of the Federation were operated in the dark, and during the two years of the current term, the details of financial income and expenditure were never disclosed to the co-chairs and presidents. Among the presidents, except for JIANG ZHU, the Executive Chairman, and the Co-Chairman in charge of finance, the other five co-chairs and all the presidents had no idea about the financial operation of the Federation.
A number of presidents have asked for the disclosure of financial details, but JIANG ZHU has ignored all of them and not responded. He just said he would give an account of what happened at the election meeting on the day he left office.
JIANG ZHU was very secretive about the amount and use of government funding, and even asked the other co-chairs to disclose only $35,000 for one sum of the funding that actually amounted to $64,760. The use of the large difference was unknown.
The co-chairs and presidents were never informed of the subsequent amount of funding approved. There has been no way to know how the funding, the camp income, or all the sponsorship money was spent.
The Federation has also transferred more than $18,000 dollars to a private account. The questions and requests for the release of accounting documents have been ignored for a long time. Recently, the people concerned had no choice but to simply say that the money was to pay back the advanced private money.
After the end of the support for China’s fight against the pandemic, without the discussion of the co-chairs and without the consent of the presidents, the notice was made directly in the presidents’ group about taking the video of how the presidents fight against the pandemic for China. Claiming that it could be kept as a memento and broadcasted domestically to extend the influence. The 8 minutes and 22 seconds of video cost $9,000. It was filmed and produced by JIANG ZHU’s colleagues at the radio station. The pandemic has just spread in Canada, yet they rushed to sign merits and praise virtues, which was strongly opposed by some of the co-chairs.
III. Violation of the By-Laws
The By-Laws of the Federation indicate that it is a non-political and non-religious organization. In spite of the principle that the Federation is not involved in politics, JIANG ZHU acted without authorization from the Co-Chairs’ Meeting and discussion at the Presidents’ Meeting to make political statements on behalf of 29 associations, which caused the public to question the nature of the Federation and where the Government’s funding was directed.
JIANG ZHU, the current Executive Chairman, treated the By-Laws of the Federation as if they were nothing and trampled on them at will. Not long ago, because he knew he could not get the support of the majority of co-chairs, he went so far as to cancel the Co-Chairs Meeting, depriving the co-chairs of their deliberations and voting rights, on the grounds that co-chairs in even numbers could not vote.
[55] Paragraph 23 of the Statement of Claim then pleads that the plain and ordinary meaning, including implied meanings, of these expressions were meant to mean and understood to mean that:
(a) Mr. Zhu manipulated the elections in August 2020;
(b) Mr. Zhu has a scheme to be re-elected as the Executive Chairman of the Committee after two years, and continue as the Executive Chairman for four years;
(c) While Mr. Zhu acted as the Executive Chairman of the Committee, the details of the Committee’s financial income and expenditure were not disclosed to the Co-Chairmen and to the other Chairmen;
(d) Mr. Zhu concealed and/or misappropriated government funding and other funding that CONCO obtained;
(e) Mr. Zhu abused his power as the Executive Chairman of the Committee; and
(f) Mr. Zhu violated CONCO’s Constitution.
The sting of the August 18, 2020 Declaration
[56] Mr. Zhu argued that the sting of the impugned expressions was that he is corrupt, untrustworthy, unethical and lacking in integrity. None of these words or innuendos are specifically pleaded in the Statement of Claim or contained in the Declaration. In fact, the words “untrustworthy” and “lacking in integrity” are not even mentioned in Mr. Zhu’s factum. The words “unethical and corrupt” are used in Mr. Zhu’s factum but only to respond to an allegation made by Cybermedia in its 2023 factum that this litigation was retaliation against the defendants who spoke out about Mr. Zhu’s “unethical and corrupt conduct…”
[57] The Statement of Claim was issued on December 9, 2020. The plaintiff has not sought to amend it.
[58] I agree with the defendants that Mr. Zhu is confined to the plain and ordinary meaning of the express defamatory words which he pleaded, together with any implied meanings which he has pleaded or something substantially similar: Lawson v. Baines, 2011 BCSC 326, 34 B.C.L.R. (5th) 363, at para. 35. Because of the serious nature of a defamation claim, it is particularly important for a defendant to know the case he must meet: PMC York Properties v. Siudak, 2022 ONCA 635, 473 D.L.R. (4th) 136, at para. 38.
[59] I also agree with the defendants that the defamatory sting which Mr. Zhu now alleges is not substantially similar to that which he pleaded and goes well beyond what is pleaded. The fact that Cybermedia used some of these words in its factum, three years after the impugned statements were made, does not assist Mr. Zhu — although I agree with Mr. Zhu that Cybermedia was unwise in making these allegations in its factum. As well, Cybermedia’s use of such words, three years after the lawsuit commenced, can have no impact on the individual defendants.
[60] I also reject Mr. Zhu’s argument that the modern and flexible approach to defamation pleadings means that a plaintiff can assert any meanings he or she wishes at any time even if they are not pleaded or are not substantially similar to those pleaded. The case law cited by Mr. Zhu does not assist him; PMC York Properties concerned whether a defamation claim should be struck out because sufficient particulars were not provided.
[61] The modern and flexible approach the court discusses in PMC York Properties relates to pleading requirements which a plaintiff must satisfy, failing which his pleading could be struck.[^4]
[62] This modern and flexible approach does not permit a plaintiff to expand upon the defamatory meanings which a plaintiff has pleaded so as to ultimately hold a defendant liable for a defamatory meaning never pleaded.
[63] I agree that the Declaration has the meanings set out in paragraph 23 of the Statement of Claim, with the exception of the pleading that Mr. Zhu concealed and/or misappropriated funds or that he abused his power. A reasonable person would not understand the Declaration to have these meanings. The tenor of the section on financial opaqueness is all about the fact that information about certain issues had not been properly disclosed or addressed.
[64] Mr. Zhu did not provide any definition of abuse of power or any argument as to why the statements in the Declaration would be taken to mean that he abused his position of power. In my view, abuse of power is typically understood to connote when someone with power takes advantage of their higher authority to take advantage of, coerce or harm other people. The allegations, while serious, do not rise to this level.
[65] Thus, the main thrust or sting of the Declaration is:
Election manipulation/rigging
• Mr. Zhu had a six year plan to be re-elected in two years and engaged in election manipulation/rigging to ensure that his preferred candidate would be elected so that his preferred candidate would change the Constitution/By-Laws so that he could run again in two years.
Financial Opaqueness
CONCO’s financial affairs were not operated in a transparent manner under Mr. Zhu’s leadership.
Violation of the Constitution/By-Laws
• Mr. Zhu engaged in activities that violated CONCO’s Constitution/By-Laws in particular by making political statements and by changing the August 15 election date because he could not get the votes he needed.
Evidence led by all parties in support of the truth or falsity of the expressions.
[66] I turn to an examination of whether Mr. Zhu has demonstrated there are grounds to believe that the defence of justification does not tend to weigh more in the defendants’ favour with respect to the sting of the defamation. As set out in Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 26, 455 D.L.R. (4th) 525, at para 54, “[g]rounds to believe” means “something more than mere suspicion, but less than proof on a balance of probabilities.”
[67] In doing so, I am taking into account the Court of Appeal’s express direction in Subway, that a motion judge should not assess these defences as though it were the ultimate trier of fact. Because anti-SLAPP motions are brought at an early stage and are meant to weed out clearly defective claims:
…If the motion record raises serious credibility issues or inferences to be drawn from competing primary facts, the motion judge must avoid taking a “deep dive” into the ultimate merits and instead, engage in a much more limited analysis.” [Emphasis added; citations omitted.]: at paras 54-55.
[68] In other words, if the defence could go either way, such that a reasonable trier “could accept it or reject it” then this supports the plaintiff: Subway, at para. 56.
[69] It should be kept in mind that Subway involved powerful materials on both sides. As will be seen, that is simply not the case here.
[70] With respect to the majority of the facts set out in the Declaration, Mr. Zhu has failed to establish that there are grounds to believe that the defence of justification does not tend to weigh more in the defendants’ favour.
[71] There are some minor facts where it is not possible to say this because the evidence is balanced on both sides and it could go either way. However, these minor facts, even if not proven, would not materially injure Mr. Zhu’s reputation, having regard to the fact that I have concluded that the evidence does tend to weigh in the defendants’ favour with respect to the main facts that underly the sting of the defamation.
[72] As a result of section 22 of the Libel and Slander Act, 1990, c. L.12 the defence of justification would not fail by reasons only of such unproven facts:
Justification
22 In an action for libel or slander for words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges. R.S.O. 1990, c. L.12, s. 22.
[73] I will explain below.
Election Rigging/Manipulation
[74] The activities that relate to election rigging in the Declaration are Mr. Zhu’s alleged 6 year plan as well as his intention to preside over the election and speak about those running to ensure that his preferred candidate would win.
[75] The evidence in respect of Mr. Zhu’s six year plan is overwhelmingly in favour of the defendants.
[76] The evidence with respect to his intention to preside over the election and speak about those running could go either way.
The six year plan
[77] Ms. Liu describes a detailed discussion with Mr. Zhu in 2019 where he told her that he wanted to be re-elected in 2020. When she told him that the Constitution would not permit his re-election he said he would amend it. When she told him it would not be easy to amend, he said that he would have someone step in for two years, amend the Constitution, and then have himself re-elected for the next two terms. Ms. Liu says that even though she thought this was wrong and went against the principle of term limits, she was Mr. Zhu’s friend and did not tell anyone at the time because of their friendship.
[78] Ms. Long is an independent witness who was the secretary for one of CONCO’s Member Associations and who was present when Mr. Zhu spoke to Ms. Liu. She corroborates Ms. Liu’s testimony.
[79] Mr. Pang’s evidence is that he met with Xing Jiyuan, the then Secretary-General of CONCO, a number of times where they discussed Mr. Zhu’s “six year plan”. In their meetings, Mr. Xing advised him that Mr. Zhu was looking for ways to be re-elected. However, because of the Constitution, Mr. Zhu had given up being re-elected in the 2020 election. And so, he developed a plan to have someone else elected, who would then amend the Constitution so that Mr. Zhu could be elected for two terms. Mr. Xing also tried to pressure Mr. Pang to drop out of the election saying that he would assist him in becoming a Co-Chair if he dropped out.
[80] Mr. Qi also swore that Mr. Zhu explained his 6 year plan to him and that he planned to have Mr. Han elected and amend the Constitution/By-Laws.
[81] The individual defendants also refer to statements made by Mr. Zhu at a press conference on August 20, 2020, which imply or support this alleged plan:
Two years is actually very close to the end. To tell you the truth, in one year, when we made major achievements, many presidents and our key personnel even members, said that Jiang Zhu should be re-elected. Honestly speaking, I did have some of this thought. But unfortunately, in November last year, there was a chance, a casual conversation, I was suddenly made to realize that the path is not so smooth. And I could also imagine that, after all, we have to do a lot of work, even to amend the bylaws. What concerned me was that my thought was I may accomplish an ideal in 4 years, we may also know why prime ministers and presidents of many countries serve one term of four years. In fact, two years’ time is very short, in the blink of an eye.
[82] As well, at this press conference, Mr. Zhu stated that he “[had] his own candidate in [his] heart”.
[83] The individual defendants also state that Mr. Han told them that he did not intend to run but was convinced otherwise by Mr. Zhu. Although this is hearsay, hearsay is permitted in motions pursuant to r. 39.01.(4).
[84] There is also the WeChat from Ms. Yu where she states that Mr. Zhu agreed to change the election date from August 16 to 15 on the condition that she vote for those in attendance at the July 27, 2020 evening meeting where Mr. Han was present. Again, although this is hearsay, hearsay is permitted in motions pursuant to r. 39.01.(4).
[85] Mr. Zhu denies that he ever considered running again or amending the Constitution/By-Laws to permit him to do so. He references various WeChat messages he posted where he denies this. These WeChat messages are dated on or after August 1, 2020, which importantly is after the defendants had already raised these issues. These are prior consistent statements.
[86] In a supplementary affidavit dated February 7, 2023, Mr. Zhu references his WeChat post of March 3, 2020, where he states that he will not participate in any elections of leadership positions. This affidavit was submitted after he conducted cross-examination. At the end I explain why I am not taking this into account. Even if I did, this would not negate the conversations that the individual defendants and an independent witness attest to regarding Mr. Zhu’s long-range plan to eventually seek the leadership position again. They never said he was seeking to be re-elected in 2020. It is also nothing more than a prior consistent statement in any event.
[87] I agree with the defendants’ position that Mr. Zhu’s evidence on this issue is nothing more than bald assertions. His failure to seek corroborating evidence of other witnesses and instead merely rely on his own bald statements or self-serving affidavit evidence is insufficient, particularly when the defendants have independent evidence.
[88] There is no reason to think that it would have been difficult for Mr. Zhu to obtain Mr. Han’s evidence or Mr. Xing’s evidence either by way of affidavit or by way of examination as a witness on a pending motion. He could have also sought to obtain Ms. Yu’s evidence in respect of the original change in the election date from August 16 to 15 which she says in a WeChat message was agreed to on condition that she vote for those in attendance at the evening meeting on July 27, 2020.
[89] A trier of fact would have to believe that the individual defendants, who are all volunteer board members (one of whom was a close personal friend of Mr. Zhu’s), all resigned and then conspired together with an independent witness to give false evidence in order for Mr. Zhu to prevail on this issue. A trier of fact would also have to ignore Mr. Zhu’s own statement at the August 20, 2020 press conference which implies much of what the individual defendants have said about his six year plan.
Mr. Han was appointed; Mr. Zhu would serve as election presiding officer and personally comment on the executive.
[90] The statement that Mr. Han was “appointed” as the successor cannot be true because the successor had to be elected. This may be poor wording or a translation issue, although the evidence has not established this. In any event, the impact of this incorrect statement is minimal since interested parties would know the successor would have to be elected. Further, the election actually occurred on August 23, 2020, five days after the Declaration in any event. Anyone who thought there had been an “appointment” instead of an election, because of the Declaration, would have only thought that for a matter of days.
[91] Mr. Zhu agreed that it would have been inappropriate for him to preside over the election or give commentary about the candidates. However, the evidence regarding whether Mr. Zhu intended to serve as election presiding officer and comment on the executive could also go either way because of the conflict in Mr. Pang’s and Mr. Zhu’s evidence. However, these facts, on their own would not materially injure Mr. Zhu’s reputation even if not proven true.
[92] Taking into account all of the statements of fact in the section titled “Election Rigging”, and taking into account s. 22, Mr. Zhu has failed to establish that the defence of justification does not tend to weigh more in the defendants’ favour on this issue.
Financial Opaqueness
[93] The evidence here overwhelmingly weighs in the defendants’ favour.
[94] CONCO’s Constitution provided that the individual defendants, who were Co-Chairmen, were entitled to financial disclosure including financial statements. They have given sworn evidence that they did not receive this financial disclosure.
[95] Again, they say that in response to their evidence, it was Mr. Zhu’s burden to show that the details of these financial affairs were disclosed to them. He could have provided explicit evidence of financial statements or other financial disclosures and communications whereby he provided this disclosure at the relevant time, but he did not.
[96] The defendants also point out that Mr. Zhu made the following admissions:
• On August 15, 2020, he stated in a WeChat post, that information and evidence about CONCO’s finances would be provided only on election day and that Mr. Han would explain its financing.
• When cross-examined and asked whether financial reports were produced at any point between 2018 and 2020, Mr. Zhu stated that they were provided at the press conference on August 20, 2020. He also stated that Mr. Han was in charge of accounting and he did not think the accounting department had done a perfect job.
[97] There is also a copy of a WeChat message sent by Mr. Zhu asking the Executive Committee to tell the public that they only received $35,000 in government funding when the actual amount received was $64,760. Mr. Zhu’s response to this is that people had been critical of funding CONCO had received and that Mr. Qi appears to have replied with a thumbs up emoji. As well, after the money was spent, CONCO did provide a report to the government as to how the money was spent. This does not negate the fact that Mr. Zhu told the Co-Chairs not to disclose the full amount of the funding to outsiders which is the statement made in the Declaration.
[98] It is also in evidence that there was $18,000[^5] related to a summer camp transferred into a private account and that questions were asked about this but information was not provided. Mr. Zhu’s answer to this issue is that this transfer occurred before he became Executive Chair. This is true, but the allegation was not that it happened during his tenure, but rather that he failed to investigate and provide information about it when requested. Therefore, his evidence does not contradict the statement made or the fact that it was substantially true.
[99] The evidence also established that there was indeed a video made praising China’s response to the pandemic at a cost of $9,000 inclusive of taxes. Mr. Zhu’s evidence was that one evening in the presence of Co-Chairs Han Jialang, Yan Baofeng and Xing Jiyan, (who are not defendants) they discussed making this video. Mr. Xing telephoned Mr. Zhu’s former colleague to discuss the matter but nothing was decided. Then, Mr. Xing decided to make the video and used Mr. Zhu’s former colleague.
[100] Mr. Zhu admitted that Mr. Qi opposed the making of the video. He provided bald evidence that Mr. Pang and Ms. Liu did not oppose the video and that the majority of the Member Associations agreed to it. Unless he telephoned all of the 29 Member Presidents individually, which he did not even attest to, there should be some WeChat communications about this approval but there are not.
[101] He also said that this money was donated by his long-time friend for this specific purpose but this still does not address the issue raised.
[102] One of Mr. Zhu’s overall response to issues of the lack of financial transparency was that he was not a member of the Financial Committee/Department. Mr. Han was in charge of this department and Mr. Zhu could not sign checks. However, there was no statement made by the defendants that Mr. Zhu was personally in charge of financial matters. The allegation is that he failed to ensure transparency of financial matters as head of the organization. As Executive Chairman, Mr. Zhu was responsible for Mr. Han’s stewardship.
[103] He also references some of Mr. Han’s WeChat messages sent in or around August 2020 where Mr. Han describes CONCO’s reimbursement policy as well as the details of government funding received and answers to some of the financial issues raised. Importantly, this occurred in August 2020, after the defendants had raised these issues.
[104] He also baldly states that whenever CONCO received funding he reported it to the Member Presidents right away. Again, unless he telephoned all 29 Members Presidents individually about this, which he does not attest to in any event, there should be some WeChat messages reflecting this reporting but there is not.
[105] I am satisfied that on balance, Mr. Zhu has failed to demonstrate that there are grounds to believe that the defence of justification does not tend to weigh more in favour with respect to financial opaqueness.
Violation of the Constitution/Bylaws
[106] There are two kinds of alleged activities by Mr. Zhu that the Declaration stated violated the Constitution/By-Laws: political statements and the cancellation of a Co-Chair meeting for Mr. Zhu’s benefit.
[107] The evidence with respect to political statements also overwhelmingly weighs in the defendants’ favour. However, the evidence with respect to the cancellation of the Co-Chairs meeting could go either way.
Political statements
[108] The first activity relates to Mr. Zhu’s alleged making of political statements on behalf of 29 Member Associations without authorizations from the Co-Chairs which caused the public to question the nature of CONCO and where government funding was directed.
[109] Article 1 of the Constitution/By-Laws state that CONCO is a non-political organization.
[110] Mr. Pang’s affidavit provided evidence that CONCO purchased an advertisement criticizing the pro-democracy protesters in Hong Kong. There was significant criticism and Mr. Pang has provided a articles from the National Post and Amnesty International regarding this.
[111] Amnesty International stated:
In October 2019, a Chinese-Canadian group known as the Council of Newcomers Organizations, which has previously received federal funding, paid for a newspaper advertisement in the Chinese Canadian Times condemning Hong Kong democracy protesters and adopting Chinese government talking points. The use of Canadian taxpayer money to fund such an organization was decried by spokespeople for pro-democracy groups in Canada, who criticized the Canadian government for allowing public funds to be used to enable CCP influence in Canadian society and politics. [Footnotes omitted.]
[112] In his initial affidavit material, Mr. Zhu denied expressing any political views as alleged. He also said that any statements he made would have been properly discussed with the Co-Chairmen but he provided no documentary evidence of this.
[113] When asked how he would have obtained authorization, he stated that this would have been through WeChat but he initially failed to provide any evidence of any such WeChat authorizations.
[114] After Mr. Zhu had conducted his cross-examination of the defendants and the day prior to the day scheduled for the completion of his cross-examination, he sought to file a further affidavit dated February 15, 2023, that purported to respond to this issue. He did not seek leave to introduce this affidavit and I am not granting leave for the reasons I will set out below. This was evidence that Mr. Zhu could have provided in response to Mr. Pang’s initial materials which addressed the paid advertisement. What is also unfair about this is that when Mr. Pang was cross examined on February 10, 2023, while he was asked in general terms about whether there were WeChat communications about this, he was not asked about this specific WeChat conversation. He has never been asked to provide his evidence on this WeChat message.
[115] In any event, the WeChat message that Mr. Zhu attaches to his February 15, 2023 affidavit is attached without any explanation. It purports to be a discussion among some of the Co-Chairmen regarding a letter to be sent to someone about the protests in Hong Kong, but it is not clear. The proposed text at the end reads, “We hereby convey our cordial greetings and respect to the Hong Kong Special Administrative Region Government and the Hong Kong Police force who have enforced the law in a civilized and hard-working manner.” The WeChat exchange also refers to putting the statement on CONCO’s letterhead. This suggests that this may have been intended to be some type of letter to these organizations.
[116] Mr. Zhu does not appear to have participated in this conversation and whatever was discussed did not mention any paid advertisement to be placed condemning the protesters or adopting the Chinese talking points. Although the communications suggest that Mr. Pang did agree to whatever this was, at most this was authority from Mr. Pang to send what appears to be a letter on its face. Furthermore, there is no evidence of any authorization from “the other Co-Chairs’ Meeting and discussion at the Presidents’ Meeting” which is the specific statement in the Declaration.
[117] In any event, even if this WeChat message can be considered evidence of some approval of an advertisement, there were other instances of political actions taken by Mr. Zhu in the affidavit material for which Mr. Zhu did not provide any credible explanations.
[118] The defendants provided evidence that he made political statements in support of the Chinese Communist Party. Apart from their affidavit evidence, the defendants have provided a National Post article which reports on Mr. Zhu having attended celebrations in Beijing for the anniversary of the founding of the People’s Republic. He was invited on the recommendation of a branch of the Communist Party’s United Front Work Department in Xinjiang, where Beijing had been accused of mass human rights abuses. The article quotes Mr. Zhu as saying he wept while witnessing the military parade through Tiananmen Square, realizing how much he “loved the motherland.” In a different article, Mr. Zhu was also quoted as saying, “Although Hong Kong is under the principle of ‘One Country, Two Systems’, the Central Government should totally step in when it comes to issues related to national security, and the Federation of Chinese Canadian Associations is highly supportive of the legislation by the National People’s Congress of the People’s Republic of China.” The article in question suggests that he was speaking on behalf of CONCO and his picture was in the article above the statements.
[119] A spokesperson for the group Canadian Friends of Hong Kong stated that taxpayer money should not be used to fund such organizations and activities and that by doing so the government is using taxpayer money to assist the Chinese Communist Party to influence and infiltrate Canadian politics and society.
[120] If Mr. Zhu did not make these statements, he provides no explanation as to why media organizations would have falsely attributed these statements to him. He also provides no evidence that he wrote to them asking them to retract these attributions which one would expect if media were falsely attributing statements to him. It had been three years since the impugned statements and he had the defendants’ initial motion record as of February 11, 2022. There is no explanation as to why he did not obtain evidence from these publications confirming that he did not give these interviews.
Cancellation of Meeting of Co-Chairs
[121] The second kind of activity relates to Mr. Zhu’s cancellation of something referred to as a “Co-Chairs’ Meeting” on the basis that he could not obtain the support of the majority of the Co-Chairs. Based upon the record, this appears to relate to the election originally scheduled to occur on August 16, 2020, which was then rescheduled to August 15, 2020. It is not contested that Mr. Zhu cancelled the August 15, 2020 date. His explanation was that because Mr. Pang had resigned on August 1, 2020, there were only six Co-Chairmen who could vote. He says that he cancelled the vote because there were an even number of Co-Chairmen and he felt it likely that the vote would be tied. He also says and it is undisputed that Ms. Liu and Mr. Qi were asked if they objected to the date change and they did not.
[122] Therefore, he admits he cancelled the vote although he does not admit it was for his own personal benefit. I again reference s. 22 of the Libel and Slander Act that provides that a defence of justification will not fail in the event all facts are not true if the fact which is not proven would not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges. The assertion that the reason Mr. Zhu cancelled the meeting was for his own benefit would not, on its own, or in combination with the other facts above where the evidence could go either way, materially injure Mr. Zhu’s reputation, having regard to the matters which I have concluded weigh considerably more in the defendants’ favour.
[123] I add that there was some evidence argued by Mr. Zhu which was not entirely fairly represented on this issue. Mr. Zhu argued that he asked Mr. Qi whether there had been breaches of the Constitution/By-Laws and that Mr. Qi said there were not. However, when Mr. Qi said this, he was specifically being asked about Mr. Zhu’s six-year plan and whether he considered that to be a breach of the Constitution/By-Laws, not the issues with respect to the alleged breaches of the Constitution/By-Laws in this section of the Declaration.
Conclusion re Justification
[124] Therefore, on balance, and taking into account s. 22 of the Libel and Slander Act, Mr. Zhu has failed to demonstrate that there are grounds to believe that the defence of justification does not tend to weigh in favour of the defendants with respect to the main sting of the Declaration which is election rigging/manipulation, financial opaqueness and breaches of the Constitution/By-Laws.
[125] In the event that I am wrong about the defence of justification, I will assess the defence of fair comment.
c) Fair Comment
[126] The defence of fair comment is broad in scope and does not create a high threshold. It applies only to comment and not assertions of fact: Senft v. Vigneau, 2020 YKCA 8, at para. 81.
[127] Comments or opinions include any “deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof”: Torstar, at para. 31, quoting Ross v. New Brunswick Teachers’ Assn., 2001 NBCA 62, 201 D.L.R. (4th) 75, at para. 56; WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 26.
[128] In determining whether a statement is comment, the court must examine the totality of the circumstances in which the remark was made, including the language, the medium, any cautionary terms and the audience. Presentation of the statement is critical: even words that appear as statements of fact may in pith and substance be comment, particularly where loose, figurative or hyperbolic language is used in the context of commentary: Raymond E. Brown, Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States), 2nd ed. (October 2023), at § 15:5, online: (Proview) Thomson Reuters Canada.
[129] Further, fair comment is “generously interpreted”: WIC Radio, at para. 30.
[130] The test for fair comment is:
(a) the comment must be on a matter of public interest;
(b) the comment, though it can include inferences of fact, must be recognizable as comment;
(c) the comment must be based on fact;
(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 subjectively actuated by express malice: Torstar, at para. 31.
Public Interest?
[131] This has already been addressed above.
Recognizable as Comment?
[132] In this case, the Declaration is set up with the headings “Election Rigging”, “Financial Opaqueness” and “Violation of By-Laws”, with supportive statements of fact underneath the headings. These headings would be recognized by a reasonable reader as comment based upon the facts asserted underneath. Headings are often considered to be conclusions based upon what is written below.
[133] As well, some of the statements under the headings would be recognized by a reasonable person to be commentary because these are also opinions, conclusions or criticisms. Below I have set out these statements with the particular words that could make them commentary in bold.
[134] Under “Election Rigging”:
• “Therefore, the election was rigged”. The word “therefore” is a conclusion.
[135] Under “Financial Opaqueness”:
• “The financial affairs of the Federation were operated in the dark during the two years of the current term”. This is a hyperbolic statement.
• “All the presidents had no idea about the financial operation of the Federation.” This is a hyperbolic statement.
• “JIANG ZHU was very secretive about the amount and use of government funding”. This is a criticism of the way he operated.
• “There has been no way to know how the funding, the camp income, or all the sponsorship money was spent.” This is a hyperbolic statement.
• “Recently, the people concerned had no choice but to simply say that the money was to pay back the advanced private money.” This is a hyperbolic statement.
• “The pandemic has just spread in Canada, yet they rushed to sing merits and praise virtues” This is an opinion evaluating the manner of proceeding.
[136] Under “Violation of the By-Laws”:
• “JIANG ZHU… treated the By-Laws of the Federation as if they were nothing and trampled on them at will.” This is a hyperbolic statement and criticism.
Based on Fact?
[137] The comments must “explicitly or implicitly indicate at least in general terms, the facts on which the comment is being made”: at para 31. In that regard, all that is required is that there is enough information to identify the factual basis of the comment: Foulidis v. Baker, 2012 ONSC 7295 aff’d 2014 ONCA 529. A reader should be able to recognize the facts so that they can then “make up their own minds” about the comment being made. Further, the foundation for underlying facts must actually be true; if they are not, then the defence fails.
[138] There is a foundation for the commentary in the Declaration based upon the following uncontradicted facts. Mr. Zhu had been the Executive Chairman. His term was ending and the Constitution prevented him from running again. There was an upcoming election. As set out in his statement at the press conference, he did feel that it was difficult to accomplish much in two years. His statement implied that he did some investigation in 2019 and realized that an amendment of the bylaws would be required for him “which would be a lot of work.” Mr. Han was running in the upcoming election. Ms. Yu’s term was coming to an end on August 15 and she would not be able to vote if the election took place on August 16. Mr. Zhu did reschedule the election date to permit Ms. Yu to vote at a meeting where the individual defendants were not present. There were concerns expressed by the Co-Chairs about financial disclosure. Mr. Zhu did tell the Co-Chairs not to disclose the full amount of the $64,760 in government funding. Mr. Zhu did not investigate the $18,000 in funding related to the summer camp when requested. CONCO did make a video about China’s response to the pandemic which cost approximately $9,000 and Mr. Zhu’s friend did make the video. Mr. Zhu had not provided financial statements prior to August 2020 and he did say that he would be providing answers to the financial questions posed on election day. CONCO’s Constitution did state that it is not a political organization. There were political comments about China and Hong Kong attributed to Mr. Zhu in the media. Mr. Zhu did ultimately cancel the August 15, 2020 election because he felt the vote would be tied.
[139] Even with respect to many of the contradicted facts set out below the headings in the Declaration, I have concluded that Mr. Zhu has failed to show that there is a basis in the record to show that the defence of justification does not tend to weigh more in favour of the defendants. This too supports the conclusion that there is a sufficient basis in the facts for the commentary.
[140] I conclude that the commentary has a sufficient basis in the uncontradicted facts. As noted in WIC Radio at para 39, although the comment must have a “basis” in the facts, there is no requirement that the comment be “supported by the facts.”
Could any person honestly express these comments or opinions?
[141] In WIC Radio at para 49, the Supreme Court stated:
The protection from actionability which the common law gives to fair and honest comment on matters of public interest is an important aspect of freedom of speech. In this context, “fair” does not mean objectively reasonable. The defence protects obstinate, or foolish, or offensive statements of opinion, or inferences, or judgment, provided certain conditions are satisfied. The word “fair” refers to the limits to what any honest person, however opinionated or prejudiced, would express upon the basis of the relevant facts [Emphasis added].
[142] Mr. Zhu did not provide any argument on this issue. Therefore, Mr. Zhu has failed to contradict the conclusion that any person could honestly hold the opinions expressed based upon the facts and I find that an honest person could express the commentary based upon the facts.
[143] Overall, subject to the issue of malice, Mr. Zhu has failed to show that there are grounds to believe that the defence of fair comment does not tend to weigh more in favour of the defendants.
d) Malice
[144] Both the defences of fair comment and qualified privilege are defeated where the plaintiff can show the dominant motive of the communication is actual or express malice: Foulidis at para 53 & 55.
[145] Malice is generally considered to mean ill will or spite: WIC Radio, at para 28.
[146] Malice can also be established when a defendant spoke dishonestly when making the statement or where the defendant spoke with reckless disregard for the truth: Bent, supra, at para. 136. The more serious an allegation, the more weight the court will give to evidence of the defendant’s failure to verify it before publication: Bent, at para. 136. The plaintiff must prove that the defendant “knew he was not telling the truth or was reckless about the truth”: Foulidis at para 52.
[147] In the context of the fair comment defence malice can also be established where the statements were made with the dominant motive which is “not connected with the purpose for which the defence exists”: WIC Radio at para 1. The purpose of the fair comment defence is to ensure robust and open debate about matters of public interest: WIC Radio at para 1.
[148] In the context of the defence of qualified privilege malice can also mean that the statements were made with a dominant subjective motive that conflicts with the sense of duty or the mutual interest that the occasion giving rise to qualified privilege created: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para 145; Cherneskey v Armadale, 1978 CanLII 20 (SCC), [1979] 1 R.C.S. 1067 at 1099; Foulidis at paras 51 & 53.
[149] Care must be had and the burden of proving malice is not easy. In Botiuk at para 34 the Court cautioned “there may be circumstances where malice is not the dominant motive of the defendant.”
Dishonesty or recklessness?
[150] One basis for Mr. Zhu’s allegation that the Declaration was made with malice is that the defendants deliberately misstated facts and/or were reckless as to the statements they made for the following reasons:
• Mr. Pang admitted that he knew Mr. Zhu did not intend to seek re-election in 2020; however, this is not inconsistent with Mr. Zhu having a long-range plan. Indeed, the Declaration specifies that Mr. Zhu “gave up his intention to be re-elected next term.”
• In his factum, Mr. Zhu alleges that when Mr. Pang was cross examined he indicated that the statement that “it was Jiang Zhu who insisted that Han run to prevent Pang from being elected” was just Mr. Pang’s judgment. This is not entirely correct. Reading the full passage shows that he was referred to this statement in the Declaration, said it was his judgment and then set out all the reasons that supported this judgment.
• In his factum Mr. Zhu alleges that Mr. Pang advised during his cross examination that they had “never expressed concerns about anyone in CONCO, corruption in CONCO”. Reading the actual transcript it is clear that this question and answer related solely to corruption. Mr. Pang stated immediately afterwards that they had expressed concerns about lack of transparency. And as noted above, corruption is not pleaded by Mr. Zhu as an extended meaning of the impugned statements.
• In his factum, Mr. Zhu also alleges that Mr. Pang admitted that “all of these allegations against Jiang Zhu were “theoretically speaking” with respect to approval of expenses and signing of checks. Again, reading the entire portion of the cross examination, this is an unfair characterization of what Mr. Pang said. The questioning concerned who had authority to sign checks. Mr. Pang initially agreed with counsel’s statement that his conclusion that Mr. Zhu had to authorize significant expenditures was “theoretically speaking”. Then, he went on and said this was because Mr. Zhu was in charge of the overall operations and without his approval, he questioned how anyone could sign checks. He also stated that he knew that Mr. Zhu did not sign checks but that was irrelevant to the issue of financial transparency. Further, on occasion he did witness Mr. Zhu instructing people to get a check signed.
• Mr. Zhu alleged in his factum that when cross examined, Mr. Pang admitted that he knew that Mr. Zhu had not been involved with the summer camp in respect of which the $18,000 payment was made. However, this does not negate the fact that people had asked questions about this matter and there had been no disclosure under Mr. Zhu’s leadership.
• Mr. Zhu also references Mr. Pang’s cross examination where he indicated that he had been in charge of summer camps for a while, implying that Mr. Pang had conceded that he already knew about the details related to the $18,000. However, Mr. Pang was very clear that “in the surface [he] was in charge of the summer camps but wasn’t aware of all of any of the accounting ins and outs related to the summer camp.” In the winter of 2018, the then accountant Mr. Xu Jing told Mr. Pang that $18,000 that related to money received by the Chinese Canadian Association prior to Mr. Zhu becoming Executive Chair had been transferred to a personal account. Mr. Pang specifically asked Mr. Zhu to investigate this issue. Recall, Mr. Zhu became the Executive Chairman in 2018 which is in or around when Mr. Pang says he learned about this. Mr. Zhu rejected his request because it had happened in a previous term.
• When cross examined, Mr. Pang said that he knew that Mr. Han was in charge of accounting, and who the bookkeeper and accountant were. Mr. Zhu says that it was irresponsible to hold the Executive Chairman responsible for failings in the financial department. Again, this does not negate the fact that there was a lack of financial disclosure under Mr. Zhu’s leadership, which is what the Declaration says.
• Mr. Zhu argues that since the defendants knew about the full government funding in the amount of $64,000, he did not fail to disclose this to the Co-Chairmen. But the defendants were not complaining about a lack of disclosure to them. They were complaining about the fact that Mr. Zhu was instructing them not to disclose the full amount of the funding. The Declaration stated that Mr. Zhu “even asked the other co-chairs to disclose only $35,000”.
• When cross examined, the individual defendants all admitted that Mr. Zhu had not committed any crime with respect to election issues and that they did not intend anything in the Declaration to mean that. They meant to criticize him on a moral basis. Indeed, the Declaration does not allege illegality and even the extended meanings pleaded by Mr. Zhu do not allege that the words used would imply criminal conduct. It is unfair to fail to plead this, fail to even have Mr. Zhu state in his affidavits that the allegation was criminal in nature and then cross examine the defendants on this. The whole point of the pleading particularly in a defamation proceeding is to ensure that the defendants know the case they have to meet. The only person who suggested illegality was counsel for Mr. Zhu through his cross-examination and argument. Even then, he did not refer me to any particular provisions of the Criminal Code, RSC 1985, c. C-46 or other law that would make what the Declaration said a criminal offence.
As well, Mr. Qi gave uncontradicted evidence that there were differences and nuances between Chinese and English so that the strict translation of the heading which was interpreted to be “election rigging” would not have the connotation of a crime to a Chinese speaking individual. It is very telling that Mr. Zhu speaks Chinese and would have read the Declaration in Chinese. Paragraph 23 of the Statement Claim states that the implied meaning of the Declaration on election issues was “election manipulation”, not “election rigging”. It must also be remembered that these individuals were all volunteers on the board of a public-interest corporation. They were not lawyers. If there were criminal legal implications for the heading “Election Rigging”, they all said they did not know it.
[151] I fail to see how the above evidence demonstrates dishonesty, or recklessness that would rise to the level of malice.
Improper motive inconsistent with the defence of fair comment or which conflicts which the duty or interest that the qualified occasion creates?
[152] Mr. Zhu also argued that there was a sufficient basis for this Court to infer that the motivation for the statements was that Mr. Pang wanted to be elected and/or was bitter about the election issues. But Mr. Pang resigned on August 1, 2020, well before the Declaration was made or the election took place so I find this argument unpersuasive.
[153] As well, the individual defendants’ true belief in their concerns is supported by their resignation. The record does not support any basis for an inference that they were motivated by personal benefit or some other unknown improper motive which was inconsistent with the defence of fair comment or which conflicted with the duty of interest that the qualified occasion created.
[154] I add that there was very little argument referencing evidence on these issues in any event.
Spite or ill will?
[155] Mr. Zhu also referenced Ms. Liu’s cross-examination where she stated that she was angry with Mr. Zhu for not responding to her prior to sending the Declaration to Cybermedia and that this is why she sent the Declaration. However, in reading the full exchange, that is not what she said at all. She said that the individual defendants wrote about why they were leaving CONCO on August 18. Mr. Pang tried to submit the Declaration to 51.ca for publication but 51.ca refused. Afterwards, Mr. Zhu wrote to Ms. Liu and asked her to wait for “the lawyer’s letter”. She was very upset because she was good friends with him. She called him and he did not answer her call. He did not try to comfort her or ask any questions about why she was going to leave and this made her very sad. So, the Declaration was already written before Ms. Liu said she became upset about Mr. Zhu not responding to her.
[156] This does not establish that her dominant motive was ill will or intent in the context of all of the issues that the individual defendants had expressed about CONCO’s operations and Mr. Zhu’s management. And it is another example of the way Mr. Zhu puts forward arguments that do not really accord with the evidence that was given.
[157] The evidence and argument cited by Mr. Zhu does not come close to establishing that there is a basis in the record to believe that the defences of fair comment and qualified privilege do not tend to weigh more in favour of the defendants because they were predominantly motivated by express subjective malice, or related to any of the other elements of these defences.
e) Responsible Communication
[158] The defence of responsible communication is asserted by Cybermedia only.
[159] In Torstar, at paras. 65 and 98, the Supreme Court recognized the responsible communication defence to further the policy interests in favour of democratic discourse and truth finding. In order to advance those policies, this defence focuses on the conduct of the defendant and applies even if the statements at issue cannot be proven to be true: Torstar, at paras. 55, 60 and 65. There is a two-part test for its application: (i) the publication in question must be on a matter of public interest; and (ii) the defendant must show that the publication was responsible, in that he or she was diligent in trying to verify the allegations, having regard to the relevant circumstances: Torstar, at para. 98.
[160] One of the reasons the new defence of responsible communication was recognized in Torstar was the concern that the defence of justification is very difficult to establish and that productive debate in society depends upon the free flow of information: at paras. 33, 52.
[161] It must be remembered that the responsible communication defence is not a standard of perfect communication: Torstar, at para. 62.
[162] With respect to the second branch of the test, the Supreme Court in Torstar provided a non-exhaustive list of contextual factors for courts to consider when assessing the responsibility of a defendant’s conduct, which I review below: at paras. 111-124.
[163] Cybermedia does not have the burden of showing on a balance of probabilities that it is has made out this defence. Rather, once Cybermedia put this defence “in play” it was Mr. Zhu’s burden to show that this defence did not tend to weigh more in favour of Cybermedia.: Armstrong v. Corus Entertainment Inc., 2018 ONCA 689, 143 O.R. (3d) 54, at para. 30.
Public interest?
[164] I have already determined that there is a basis to conclude that this is a matter of public interest.
Status and reliability of sources?
[165] On August 18, 2020, Cybermedia received a request from Ms. Liu to publish the Declaration on Creaders and BcBay websites.
[166] Mr. Chen, the Director of Cybermedia, had previously posted content at Ms. Liu’s request. Mr. Chen reviewed the Declaration and noted that its authors were expressly named at the bottom of the Declaration and that they were each Co-Chairpersons of CONCO and heads of their respective Member Associations. This was not an anonymous letter but from individuals in positions who would reasonably have knowledge of the matters contained in the Declaration.
[167] Mr. Chen had known Ms. Liu, who gave him the Declaration personally, for years. This was not an anonymous letter but from individuals in positions who would reasonably have knowledge of the matters contained in the Declaration. Therefore, these were reliable sources.
[168] Given that it appeared to be related to matters of public interest and importance which Cybermedia’s audience would be interested in, Cybermedia published the Declaration on Creaders and BcBay.
Whether the plaintiff’s side of the story was sought?
[169] It is true that prior to publishing the Declaration, Cybermedia did not seek Mr. Zhu’s side.
[170] However, the Supreme Court in Torstar held that seeking the plaintiff’s side of the story is only one of seven factors listed: at paras. 116-117, 126.
Seriousness of the allegations?
[171] Publications alleging criminality or illegal conduct are considered the most serious and will demand more thorough efforts at verification: Torstar, at para. 111. The allegations in question are serious, but Mr. Zhu has provided no law to support his argument that the allegations were criminal in nature and in any event did not plead an extended meaning of criminality. He also failed to provide evidence that the heading “Election Rigging” in Chinese would connote criminal conduct to a Chinese-speaking individual. Mr. Qi’s evidence stating that it would not is uncontradicted.
Overall Fairness?
[172] In Corus Entertainment, at para. 42, the Court of Appeal for Ontario considered the “overall fairness” of the moving party’s publication, wherein they identified the source of information and emphasized the context of the publication, which was a political opponent’s comments made in the middle of a heated election campaign. The court held that identifying this context gave the reader “valuable information when assessing the comment’s merits and goes a long way toward ensuring the fairness” of the reporting.
[173] This argument is even more applicable in this case.
[174] The Declaration was not an article about an issue as it was in Corus Entertainment. It was a declaration signed by the individual defendants who were all Co-Chairs explaining their reasons for resignation. The Declaration contained the specific words of the four authors and Cybermedia merely published the same for public consumption as it related to a prominent non-profit organization in the Chinese community in Canada.
[175] As in Corus Entertainment, this goes a long way towards ensuring fairness, because the reader would know that this was only one side.
[176] As well, Cybermedia specifically gave Mr. Zhu an opportunity to publish his own statement.
[177] Shortly following publication of the Declaration, Mr. Chen received correspondence from two individuals who said they were contacting him on behalf of Mr. Zhu. These people were Yafeng Wan and Christina Tu. Both Mr. Wan and Ms. Tu requested that Mr. Chen remove the Declaration from Cybermedia’s websites. Mr. Chen told both of them that he would not remove them but offered Mr. Zhu the opportunity to publish his own statement so there could be public discourse on the matters. Mr. Zhu refused.
[178] Mr. Zhu initially denied that he had requested Mr. Wan to reach out to Cybermedia. As a result, Cybermedia obtained an affidavit from Mr. Wan attesting to this. It is important to note that he was an independent witness. Afterwards, when Mr. Zhu was cross-examined, he ultimately admitted that he asked Mr. Wan to speak to Cybermedia.
[179] Giving Mr. Zhu the opportunity to publish his side, through his own statement, in or around the same time, was sufficient to balance the Declaration, even though Mr. Zhu did not take Cybermedia up on its offer.
[180] Instead of publishing a statement through Cybermedia, Mr. Zhu arranged a press conference for August 20, 2020, which was posted on YouTube.
[181] Cybermedia then published an article related to Mr. Zhu’s press conference. Cybermedia received this article from Ms. Tu and published it without modification. Cybermedia understood this to be sent on behalf of Mr. Zhu, although he would not confirm this. Irrespective of whether Mr. Zhu requested it, this article provided a counter-narrative to that set out in the Declaration.
The urgency of the matter?
[182] Mr. Zhu argues that there was no urgency and points out that the Declaration was published three to four hours after receiving it by email. However, this factor is somewhat militated by the fact that Cybermedia gave Mr. Zhu an opportunity to respond, and then published an article shortly thereafter based upon Mr. Zhu’s press conference where he told his side.
[183] As well, there was arguably some urgency. The board members of a prominent Chinese non-profit corporation had resigned. Mr. Zhu had already placed his narrative on 51.ca in or around August 13, 2020. And there was an upcoming election.
Whether inclusion of statements was justifiable?
[184] In Grant, at para. 118, the Supreme Court indicated that in applying this factor, the trier of fact should “take into account that the decision to include a particular statement may involve a variety of considerations and engage editorial choice, which should be granted generous scope.”
[185] This factor is not applicable here as Cybermedia made no specific choices about what to include. This was publication of a Declaration of others, specified as such.
Omitted facts
[186] This factor is inapplicable as Mr. Zhu does not allege any specific omitted facts in argument other than the fact that his side was not sought prior to publication.
[187] Balancing all of the factors, I conclude that Mr. Zhu has failed to show that there are grounds to believe that the defence of responsible communication does not tend to weigh more in favour of the defendants, taking into account all of the relevant factors.
f) Conclusion re. s. 137.1(4)(a)
[188] In all the circumstances, I find that Mr. Zhu has failed to demonstrate that there are grounds to believe that there is a basis in the record to support the proposition that the defences asserted do not tend to weigh more in favour of the defendants.
[189] Therefore, the defendants’ motion is successful and the action is dismissed, but in the event I am wrong, I will proceed to consider the public interest hurdle.
Issue 4: The Public Interest Hurdle
[190] The third branch of s. 137.1(4)(b) of the Act is whether the harm “likely to be suffered” by Mr. Zhu is sufficiently serious such that the public interest in allowing the proceeding to continue outweighs the public interest in protecting that expression.
[191] As directed by the Supreme Court in Pointes Protection, at para. 62:
[Section] 137.1(4)(b) open-endedly engages with the overarching concern that this statute, and anti-SLAPP legislation generally, seek to address by assessing the public interest and public participation implications. In this way, s. 137.1(4)(b) is the key portion of the s. 137.1 analysis, as it serves as a robust backstop for motion judges to dismiss even technically meritorious claims if the public interest in protecting the expression that gives rise to the proceeding outweighs the public interest in allowing the proceeding to continue.
[192] This is the “crux” or the “core” of the s. 137.1 analysis: Pointes Protection, at para. 82. It provides the courts with the ability to assess “what is really going on in a particular case before them”: Pointes Protection, at para. 81. The burden is on Mr. Zhu to show (a) that he likely has or will have suffered harm, (b) that such harm is as a result of the defamatory expression, and (c) that the public interest in allowing the action to proceed outweighs the public interest in protecting the expression: Pointes Protection, at paras. 62, 82.
[193] The analysis is essentially a weighing exercise.
a) Alleged Harm
[194] Mr. Zhu references caselaw in defamation trials which hold that harm in a defamation case is presumed: Pointes Protection, at para. 71.
[195] However, in Park Lawn Corporation v. Kahu Capital Partners Ltd, 2023 ONCA 129, 165 O.R. (3d) 753, at para. 50, the Court of Appeal clarified that “presumed harm is generally insufficient for the purposes of s. 137.1”. See also the recent decision on this same issue: Chaudhary v. Shadid, 2023 ONCA 743 at paras 6 & 16.
[196] As set out in Pointes Protection, at para. 70, while there is no “threshold requirement for the harm to be sufficiently worthy of consideration”, the motion judge as part of the weighing exercise takes into account whether the harm is “sufficiently serious” to outweigh the public interest in allowing the expression.
[197] While a perfectly crystalized damages brief is not required, Mr. Zhu only has four paragraphs in his affidavits concerning damages, in the context of a proceeding where he has filed four affidavits and where the motion before me was argued three years after the proceeding was commenced. His last affidavit is dated February 15, 2023 and although I am not admitting it, even in that recent affidavit, he did not seek to file any additional evidence about harm.
[198] The evidence filed by him simply does not demonstrate a sufficiently serious magnitude to outweigh the public interest in allowing the expression.
[199] I will explain.
[200] Mr. Zhu states that the impugned statements harmed his reputation as a trustworthy Executive Chairman and Co-Chairman and that he had suffered damages in his profession, trade and business. He says that he is a prominent member of the Chinese community and that these kinds of allegations would have a particularly negative impact on him within this community.
[201] I accept that there would be general reputational harm from the impugned expressions. However, there is insufficient evidence to support the impact on his profession, trade and business.
[202] He states that he was suspended from Fairchild Radio and TalentVision TV due to the impugned statements but provides no independent evidence of either the suspension or the fact that if he were suspended, it was because of the impugned expressions. The only evidence he provides regarding this issue is his T4s showing that his income from Fairchild Radio decreased from 2019 to 2020 by $2,000 and that his income from TalentVision TV decreased by approximately $700.
[203] Mr. Zhu also states that sales at his restaurant dropped following the publications. He does not provide the name of the restaurant, any sales information, or any details regarding this that would support this claim. He does not indicate why people would know that this restaurant was his. Additionally, it is unknown if this restaurant is a corporation. If it is, it should be a party to this action and Mr. Zhu cannot claim personal damages for its losses.
[204] The alleged financial harm Mr. Zhu claims is minimal/nominal, vague, conclusory and amounts to nothing more than bald assertions.
[205] It has been more than three years since the impugned expressions were published and this action was commenced. Given the stage of this proceeding, one would expect that if Mr. Zhu had suffered the kind of significant reputational harm alleged, he would have been able to develop a more comprehensive analysis of the impact on his profession, trade and business that he alleges. His failure to do so after this amount of time is relevant to the analysis.
[206] As well, there is a significant issue as to whether or not the harm alleged by Mr. Zhu was causally related to the Declaration. As the Supreme Court noted, "evidence of a causal link between the expression and the harm will be especially important where there may be sources other than the defendant’s expression that may have caused the plaintiff harm": Pointes Protection, at para. 72.
[207] There is no evidence from TalentVision TV at all, let alone any evidence confirming that he was suspended because of the Declaration.
[208] As well, August 2020 was still the early days of the COVID-19 pandemic and as such, a far more plausible explanation for the reduction in revenue at his restaurant was emergency protocols imposed by the Ontario Government and other impacts of the pandemic.
[209] Additionally, Mr. Zhu gave an interview to 51.ca regarding the Members’ Association WeChat messages, which the Defendants say was prior to their Declaration. What is important about this interview is that portions of Mr. Pang’s August 1, 2020 Members’ Association WeChat message about their concerns were “leaked” to 51.ca by an “anonymous tipster” and then Mr. Zhu was interviewed to provide his response.
[210] The transcription of this interview states that it occurred on August 19, 2020, which was after publication of the Declaration. However, Mr. Pang swore that this interview was prior to their public Declaration and specifically on August 13, 2020. Mr. Zhu also admitted this interview was before the Declaration when he was cross-examined. Indeed, the individual defendants state that this was in part the reason for their Declaration and their submission of it to Cybermedia. Mr. Zhu had already put these issues into the public domain with his narrative and they wanted to respond.
[211] I accept that the date on the transcription is incorrect and I find it troubling that Mr. Zhu’s counsel made the argument he did that the .51.ca article was after the Declaration given Mr. Pang’s and Mr. Zhu’s sworn evidence.
[212] If this interview were indeed on August 19, 2020, or otherwise after the Declaration’s publication on August 18, it is odd that the article did not make any reference to the Declaration, which was already on Cybermedia as of August 18, 2020. There would be no reason to refer to Mr. Pang’s “leaked” August 1, 2020 WeChat message as part of the report of the interview if the Declaration was already public.
[213] Further, the article says that Mr. Zhu was elected the Chairman of CONCO for two years until August 18 “and will be stepping down”. This clearly implies that the interview was conducted prior to the end of his term.
[214] The importance here is that Mr. Zhu put the allegations into the public sphere before the Defendants did with respect to the Declaration and this goes directly to the issue of the harm he says he suffered which was caused by the publication.
[215] It also shows that he was seeking to control the narrative with only the individual defendants’ partial views out in the public and his ability to call out what he said were “lies”. The 51.ca report states:
JIANG ZHU said it was not surprising that some people have various views, but he believed that it was very undesirable to denigrate others for personal interests. As for the offences against him personally, he won’t bother with them. During his tenure as the Executive Chairperson of the Federation, he voluntarily gave up the right of signing cheques and never reimbursed any money in the Finance Department of the Federation. He had contributed money and efforts to the activities of the Federation with a clear conscience.
As for the reports that there were irregularities in the term replacement election, JIANG ZHU said that he had already elaborated his views on the issue, and he had announced as early as the second half of last year that he would. not participate in the election of the Executive Chairperson or Co-Chair of the Federation. The time and location of the election would be decided jointly by the Presidents of the 29 board member associations, and the election would be completely open. The media and people from all walks of life would be invited to supervise the election, so that the lies would collapse by themselves. [Emphasis added.]
[216] In Levant v. DeMelle, 2022 ONCA 79, 79 C.P.C. (8th) 437, at para. 70, the Court of Appeal noted that when an individual “injects themselves into public debate over a contentious topic, they must expect that they are going to be met with some measure of rebuttal, perhaps forceful rebuttal, by those who take an opposite view.”
b) Does the harm outweigh the public interest in the expression?
[217] Balancing against this harm is the fact that the expressions at issue here are the very core of the forms of valuable speech that should be protected to maintain a free and democratic society. As noted by the Supreme Court in Hansman v. Neufeld, 2023 SCC 14, at para. 77, quoting the Court of Appeal for British Columbia in that case, “freedom of expression is ‘the cornerstone of a pluralistic democracy’ and… there must be views to be forcefully and even intemperately presented in the public forum”.
[218] I agree with the defendants that one of the fundamental goals of freedom of expression is the ability of citizens or those in positions of power, particularly in public organizations, to be able to call out questionable leadership. I agree that if people in our society cannot hold public figures or entities in receipt of public funds accountable or question their leadership, there is a significant risk of waste, fraud and abuse.
[219] These expressions were about the governance and finances of a public-interest organization in receipt of public funding and about what Mr. Zhu had done as the leader of CONCO.
[220] Bangash v. Patel, 2021 ONSC 7620 involved similar allegations about a lack of transparency. At para. 126, Boswell J. noted that the expression at issue “touched on the core values of truth-seeking, participation in institutional decision-making and accountability.”
[221] Notably, after the expressions were made, Mr. Zhu did provide disclosure of CONCO’s finances. Thus, the expressions in fact did ultimately achieve the goal of accountability.
The hallmarks of an anti-SLAPP suit
[222] This litigation bears some but not all of the hallmarks of anti-SLAPP litigation.
[223] On the one hand, there is no evidence that Mr. Zhu has brought any other actions to silence critics.
[224] On the other, the defendants are arguably whistleblowers seeking to bring attention to impropriety and this litigation seeks to silence them. There are severe chilling effects from permitting this sort of action; namely whistleblowers who see financial and electoral impropriety will be scared to speak, for fear of being bullied through litigation.
[225] It is important in this respect that the August 20, 2020 press conference held by Mr. Zhu was attended by 15 members of the media and reported on Creaders.net, a prominent Chinese-Canadian news site. This article extols Mr. Zhu’s virtue as a Chairman, stating that he was begged by others not to leave. It has the appearance of a publicity piece.
[226] Mr. Zhu seeks to silence the defendants’ dissenting voices while leaving this publication in the public sphere such that there will only be one side of the story the public will hear.
[227] There is both an economic and power imbalance between the plaintiff and the individual defendants. Mr. Zhu is a business owner – he owns a restaurant. He is a public figure, well known in the Chinese community, and has connections in the media. By contrast, Mr. Qi is the sole breadwinner of his family and Ms. Liu is a stay-at-home mother. However, I acknowledge that Mr. Zhu does not have more power than Cybermedia, which has two prominent media sites.
[228] Mr. Zhu’s own litigation conduct supports the defendants’ arguments that this proceeding is not a legitimate claim to redress wrong, but an attempt to silence critics.
[229] Mr. Zhu has delayed the progress of this motion and thus delayed the actual progress of his own claim. This casts serious doubt on his assertion that his reputation was harmed and that the purpose of this proceeding is to seek redress. I agree with the defendants’ argument that any reasonable person who believes his reputation was harmed by the alleged statements would act swiftly to prosecute their defamation suit. While all delays cannot be placed at Mr. Zhu’s feet, he is responsible for a significant portion.
[230] The procedural history is tortured and includes the following:
• Mr. Zhu commenced this action on December 11, 2020.
• On August 10, 2021, the parties attended Civil Practice Court (“CPC”) where the original timetable for the within motion was set on consent, with the motion scheduled for four hours on March 30, 2022.
• On August 23, 2021, the individual defendants served Mr. Zhu with the Notice of Motion. By virtue of s. 137.1(5) of the Act, no further steps may be taken in the proceeding by any party until the motion, and any appeal, has been finally disposed of.
• As at August 23, 2021, the individual defendants Mr. Yang[^6], Ms. Liu, and Mr. Qi had yet to be served with the Statement of Claim.
• Unbeknownst to any of the defendants, and despite the stay of proceedings pursuant to s. 137.1(5) of the Act, on December 15, 2021, Mr. Zhu filed a Notice of Motion returnable on March 9, 2022, seeking validation of service upon Ms. Liu and Mr. Qi (the “Service Motion”). The Service Motion was not served upon any party at this time and was not provided to counsel.
• On January 31, 2022, Mr. Pang and Cybermedia delivered their Motion Record.
• Mr. Zhu refused to take any steps related to the within Motion because a few documents did not contain English translations.
• The defendants provided an Amended Motion Record containing English translations on February 11, 2022, but Mr. Zhu still did not provide his responding motion record which was required pursuant to the original timetable by February 18, 2022. Notably, Mr. Zhu speaks Chinese. While the documents had to be translated, there is no obvious reason why he could not prepare his record by February 18, 2022 without the translations, which he received on February 11, 2022. It seems that he preferred to focus on his Service Motion.
• On February 25, 2022, seven days prior to the return of the Service Motion, Mr. Zhu caused his Motion Record to be served upon Mr. Qi and Ms. Liu. They promptly retained Andrew Jia as counsel of record, who represented Mr. Pang already. Mr. Jia requested that the Service Motion be dismissed given that it was a nullity contrary to the stay of proceedings pursuant to the Act.
• On March 9, 2022, the parties relevant to the Service Motion attended the hearing of the motion before Associate Justice La Horey, who ordered the Service Motion be adjourned sine die without prejudice to the parties’ submissions as to costs, to be addressed later.
• The defendants adjourned the return of the motion on March 30, 2022, and re-attended at CPC to establish a new timetable and return date.
• On March 16, 2022, counsel attended CPC again to set a new motion timetable, which required: (a) Responding Record by April 20, 2022; (b) Reply Record by May 11, 2022; and (c) Cross-examinations on May 17 and May 18, 2022.
• The return of the within Motion was set for June 22, 2022.
• Pursuant to the consent timetable, Mr. Zhu delivered his Responding Record on April 20, 2022, and the moving parties delivered their Reply Record on May 11, 2022. Mr. Zhu scheduled cross-examinations for May 17 and 18, 2022.
• Mr. Pang’s Supplementary Affidavit sworn May 11, 2022, was served in accordance with the revised timetable. It is two pages long and contains three exhibits. Two of the exhibits contain certified translations of Chinese transcripts of portions of the YouTube video of Mr. Zhu’s press conference on August 20, 2020.
• On May 13, 2022, Mr. Zhu’s counsel sent a letter to the defendants requesting that they strike parts of Mr. Pang’s affidavit on the basis that one exhibit contained hearsay, and either strike two other exhibits (which were translated portions of the YouTube video), or produce the full translated YouTube video “to establish the context of the video to counsel and to the Judge, and so that [his] client can properly respond.” Mr. Zhu’s counsel further stated he “cannot properly commence cross-examinations in the face of an approximately 40 minutes [sic] of video in a foreign language that has not been fully transcribed or translated.”
• On May 13, 2022, the defendants responded stating that they are not submitting the entire YouTube video as evidence and have translated all portions upon which they are relying. They sought to continue with cross-examinations, on the basis that there was no reason to adjourn a cross-examination on the basis that they were only relying on a portion and Mr. Zhu was there and could speak and understand the language of the video.
• On May 16, 2022, Mr. Zhu cancelled the cross-examination because of this issue.
• Mr. Zhu then sought to schedule a case conference, but the earliest dates available were in September 2022.
• On May 17, 2022, the defendants offered to re-schedule cross-examinations to May 25 and 26, 2022, and provided their September availability without prejudice to the position that this motion should proceed on June 22, 2022. The defendants noted that this would give Mr. Zhu time to get the YouTube video translated, and the parties would still be able to proceed with this motion as scheduled. But he did not agree. If the issue was cost, Mr. Zhu could have made that argument at the hearing of the motion.
• On June 20, 2022, the court wrote to the parties advising that no judge was available to hear the within Motion on June 22, 2022.
• On July 5, 2022, in an effort to move the motion along without the need to wait until September 2022 for the Case Conference, the defendants offered for the parties to split the costs of the translations of the entire YouTube video without prejudice to the parties’ submissions as to costs at the motion. Mr. Zhu did not respond to this offer.
• On August 16, 2022, the parties attended a third CPC to schedule the return date for the within Motion. No date or timetable could be scheduled at this time given the upcoming Case Conference in September 2022.
• On September 28, 2022, the parties attended a Case Conference before Koehnen J. who ordered the parties to split the costs to translate the YouTube video, set a new timetable and return date for the Motion (June 29, 2023). He ordered costs in favour of the defendants because in July 2022, they offered the solution that Koehnen J. ordered. Had Mr. Zhu accepted same, a much earlier date for the motion could have been obtained.
• On October 16, 2022, the parties received the translation of the YouTube video. It clearly shows that, save and except introductory remarks and some minor comments, the vast majority of the video involved Mr. Zhu speaking.
• On November 2, 2022, Mr. Zhu delivered a second supplementary record. It only contained excerpts of a few minutes from the YouTube video.
• Cross-examinations were scheduled for December 15 and 16, 2022. The parties agreed that Mr. Zhu would cross-examine the defendants’ affiants first. This took both scheduled days. As such, Mr. Zhu’s cross-examination was scheduled for February 8, 2023.
• On February 7, 2023, one day prior to Mr. Zhu’s cross-examination and after already cross-examining the moving parties’ affiants, Mr. Zhu delivered a third supplementary record, contrary to r. 39.02(2).
• Cross-examination of Mr. Zhu was not complete on February 8, 2023. As such, the parties scheduled continuation of cross-examination on February 16, 2023.
• On February 15, 2023, one day prior to the continuation of Mr. Zhu’s cross-examination, Mr. Zhu delivered yet another supplementary record, contrary to r. 39.02(2).
[231] Mr. Zhu’s conduct is not the conduct of an individual who asserts that he is bringing a lawsuit to clear his name.
Admission of Mr. Zhu’s supplementary affidavits
[232] I note that Mr. Zhu has never brought a motion for leave to admit these further affidavits after cross-examination, although he argued I should consider them as a matter of fairness during the hearing.
[233] Given the failure to seek leave, which would have involved satisfying the test pursuant to r. 39.02(2), I do not grant leave.
[234] Even if I had, for reasons I have already given above with respect to these affidavits, it would not change the outcome of this matter.
[235] In summary, this action is dismissed pursuant to s. 137.1 of the Act. The parties may make submissions on costs as follows:
(a) The Moving parties within seven days of these reasons in writing, no longer than ten pages;
(b) Mr. Zhu within seven days thereafter in writing, no longer than ten pages.
Papageorgiou J.
Released: December 4, 2023
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JIANG ZHU
Plaintiff
– and –
YIGONG PANG also known as YI GONG PANG, YONG QI, JUNCHANG YANG also known as JUN CHANG YANG, DING CHUO LIU also known as DINGCHUO LIU also known as MICHELLE LIU, and CYBERMEDIA NETWORK INC.
Defendants
REASONS FOR JUDGMENT
Papageorgiou J.
Released: December 4, 2023
[^1]: The parties advised me that the parties used of the words Bylaws and Constitution interchangeably regarding the same type of issues.
[^2]: As will be discussed at the end, Mr. Zhu’s counsel argued that this interview occurred on August 19, 2020, because that is the date that the transcription from Chinese to English shows. However, for reasons I will discuss in the section on harm, I am satisfied that this interview was given by Mr. Zhu on or about August 13, 2020 and that the article about it occurred on or about this time as well. This did not require me to do a deep dive into the evidence. It was plain on the face of the interview and both Mr. Zhu and Mr. Pang gave sworn evidence that this interview occurred before the August 18, 2020 Declaration made by the defendants.
[^3]: I note here that the translated wording of the Declaration in the Statement of Claim is not exactly the same as the wording in the certified translation but the parties did not raise any issues about this.
[^4]: It was once required that all the elements of defamation be pleaded with strict precision, including the exact wording and the names of people to whom the words were published and where and when they were published. Recent authorities have permitted defamation pleadings to stand where the plaintiff has been unable to provide full particulars. This could include situations where the plaintiff has provided all the particulars he has or where the defendant is the one with knowledge of the particulars, and where the pleadings otherwise establish a prima facie case: The Catalyst Capital Group Inc. v. Veritas Investment Research Corporation, 2017 ONCA 85, 136 O.R. (3d) 23, at para. 25.
[^5]: There is some dispute as to the quantum of the funds but this is not relevant.
[^6]: Mr. Yang has since passed away and is not participating in this proceeding.