Court File and Parties

COURT FILE NO.: 21-104 DATE: 2023-02-06 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Amy Kirkland, Plaintiff (Responding Party) AND John Nagy, Stephen Campey, Colin Mears, and Jeannie Catchpole, Defendants (Moving Parties)

BEFORE: The Honourable Mr. Justice Marc Smith

COUNSEL: Andrew Lister, Counsel for the Plaintiff Christopher J. Edwards, Counsel for the Defendants

HEARD: September 6, 2022, November 30, 2022, and December 20, 2022 (in writing)

REASONS FOR DECISION

M. Smith J

[1] The Defendants seek an order, pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended (“CJA”), commonly known as the “anti-SLAAP” provision, dismissing the Plaintiff`s claim in defamation against the Defendants.

[2] For reasons that follow, the Defendants’ motion is dismissed.

BACKGROUND

[3] The Plaintiff was the Executive Director of the Gananoque and Thousand Islands Chamber of Commerce (“Chamber”) from October 2016 until her termination in August 2021. For most of her employment, she was the only paid employee.

[4] The Defendants are all business owners in the town of Gananoque. Other than the Defendant Catchpole, they are all members of the Chamber.

[5] The mission statement of the Chamber is to advocate and represent businesses’ interests and issues affecting the community.

[6] In or around May 2021, the Defendants (excluding Mr. Nagy) wrote letters questioning the Plaintiff’s job performance, expressing their concerns with respect to her conduct and demeanor. They called for her termination. The letters were sent to various organizations, namely the Chamber and its board members, various members of the Ontario Chamber of Commerce and the Canadian Chamber of Commerce. It is noted that these letters expressly state the following: “Confidential – Not to be copied, shared, or distributed.”

[7] The Plaintiff subsequently commenced a defamation action against the Defendants.

PROCEDURAL BACKGROUND

[8] This motion was heard on September 6, 2022, and the decision was reserved.

[9] On October 11, 2022, the parties asked the court to hold on the release of the decision because an issue had arisen, namely the disclosure of additional evidence by the Defendants.

[10] On November 30, 2022, a Case Conference was held. The Defendants were permitted to bring a motion, seeking the re-opening of the anti-SLAAP motion for the purposes of introducing new evidence. The final motion materials were received on December 16, 2022.

[11] On December 20, 2022, I granted the Defendants’ motion and released the following Endorsement:

The Defendants seek to reopen the underlying anti-SLAPP motion for the purposes of introducing new evidence.

The Plaintiff opposes the motion. She argues that the Defendants do not meet the test for the admission of fresh evidence after the conclusion of a hearing. She also says that admitting the new evidence is prejudicial because it will further delay the proceedings and additional legal costs will be incurred. Finally, she submits that granting the Defendants' motion will create a negative precedent.

The Defendants' motion is granted for the reasons set out in the text that follow.

When a decision has not yet been released, as is the case here, the test for admitting fresh evidence is more relaxed or permissive. In the decision of Brasseur v. York, 2019 ONSC 4043, the court was of the view that, in a situation where the case has not yet been decided, a judge should exercise his/her discretion in allowing fresh evidence if it is in the interest of justice of doing so. Fairness and truth-seeking are factors to be considered. I adopt this reasoning.

Fresh evidence does not have to be decisive, but it should be admitted if it is conclusive of an issue, have an important influence on the result or may influence the result. The exercise of due diligence is another factor to consider.

The fresh evidence in question deals with two termination letters, which I have not seen. Counsel for the Plaintiff agreed to provide these letters by way of an undertaking during the Plaintiff's cross-examination. In my view, any evidence that pertain to the Plaintiff's termination is relevant to the underlying issues to be determined in the anti-SLAPP motion. Influence is the criteria, not decisiveness. I am of the opinion that it is possible that the termination letters may have an influence on the result.

The Plaintiff was cross-examined on June 6, 2022. At that time, an undertaking was given to produce the two termination letters. On September 5, 2022, counsel for the Defendants requested the production of the letters. Counsel for the Plaintiff agreed to provide it to counsel for the Defendants, but it was not presented at the hearing of the motion on September 6, 2022. The termination letters should have been produced by counsel for the Plaintiff and/or should have been obtained by counsel for the Defendants before the motion. Both parties should have been more diligent. The Defendants should not be penalized for counsel's failures. Disclosure of these letters will assist me in my truth-seeking function.

Admitting the fresh evidence will not significantly delay the proceedings, and in any event, fairness dictates that the new evidence be admitted into evidence. The parties will be given the opportunity to make further submissions on the relevance of the new evidence. If the Plaintiff incurs additional costs, she may make submissions for the court's consideration once a decision has been rendered on the anti-SLAPP motion.

Admitting the fresh evidence will also not create a negative precedent. Any analysis undertaken by the court regarding the admission of new evidence is case specific, and this case is unique, warranting that it be permitted.

For all these reasons, and in the interest of justice and fairness, I am exercising my discretion and allowing the admission of the two termination letters. The Defendants shall file and serve the termination letters along with written submissions (limited to three pages) regarding the relevance of the two termination letters to the anti-SLAPP motion, by no later than January 6, 2023. The Plaintiff shall serve and file her response, with the same page restriction, by no later than January 27, 2023. The Defendants may serve a one-page reply by no later than February 3, 2023.

Costs of this motion are reserved.

[12] The final materials were received on February 3, 2023.

LEGAL PRINCIPLES

[13] In Thorman v. McGraw, 2022 ONCA 851, the Ontario Court of Appeal recently summarized the purpose of anti-SLAPP legislation, at paras. 3 and 4:

3 Section 137.1 was enacted against the use of legal processes ("strategic lawsuits against public participation" or "SLAPPs") as a tool to shut down the expression of matters of public interest: 170464 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, at paras. 1, 2-4, 16. It was not intended to foreclose the adjudication on the merits of legitimate defamation or other actions that concern purely private and commercial disputes and that do not involve expressions on matters of public interest. Accordingly, s. 137.1 protects expression whose subject matter is genuinely a matter of public interest, while providing that a plaintiff with a legitimate claim is not unduly deprived of the opportunity to pursue it: Bent v. Platnick, 2020 SCC 23, 449 D.L.R. (4th) 45, at para. 74; Pointes, at para. 46.

4 Motions under s. 137.1 are not motions for summary judgment. There is no adjudication or prejudging of the merits of the underlying proceeding. Courts must carefully guard against conflating the two and ensure that they engage in a robust analysis of the criteria under s. 137.1. See Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, 153 O.R. (3d) 20, at para. 47; Grist v. TruGrp Inc., 2021 ONCA 309, at paras. 17-18; Platnick, at para. 158.

[14] Section 137.1(3) of the CJA requires a two-part analysis, known as the threshold burden. The moving party must show that:

i. the proceeding arises from an expression made by the moving party; and ii. the expression relates to a matter of public interest.

[15] The term “expression” is defined in section 137.1(2) of the CJA as follows: “In this section, ‘expression’ means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.”

[16] In Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, at para. 28, the Supreme Court of Canada concluded that the words “relates to a matter of public interest” are to be given a broad and liberal interpretation.

[17] These words must also be “distinguished from expression that simply makes reference to something of public interest, or to a matter about which the public is merely curious. Neither of the latter two forms of expression will be sufficient for the moving party to meet its burden under s. 137.1(3)”: Pointes, at para. 29.

[18] If the threshold burden is met, the analysis moves to the merits-based hurdle under s. 137.1(4)(a) of the CJA, whereby the onus shifts to the responding party to satisfy the court that there are grounds to believe that:

i. the proceeding has substantial merit, and ii. the defendant has no valid defence.

[19] The standard “ground to believe” has been interpreted as being one that “requires that there is a basis in the record and the law” and that it requires “something more than the mere suspicion, but less than … proof on a balance of probabilities.”: Pointes, at paras. 39 and 40.

[20] If the merits-based hurdle is met, the analysis moves to the public interest hurdle under s. 137.14(b) of the CJA, whereby the respondent party must satisfy the court that “the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.”

[21] The public interest hurdle is set out in two stages: (i) the harm analysis; and (ii) the weighing analysis. The question to be answered at the harm analysis stage is whether harm caused by the expression is likely to be or has been suffered, either in a monetary or non-monetary fashion. Once the harm has been established, we turn to the crux of the analysis, namely the weighing analysis, where the question to be answered is whether the harm outweighs the public interest in protecting the expression. The weighing exercise requires the court to engage in a qualitative analysis of the expression and the motivation behind it: Thorman v. McGraw, at paras. 11 to 15.

THE POSITION OF THE PARTIES

The Defendants

[22] The Defendants argue that the threshold burden is met. First, this proceeding relates to the letters written by them, which establishes the causal relationship. Second, the expression that the Plaintiff complains of in her claim relates to a matter of public interest. Her role as the Executive Director of the Chamber was highly visible within the community. She needed to interact and build relationships with the local government and other institutions. The Defendants expressed opinions regarding her lack of professionalism and failings in carrying out her role as the Executive Director. They felt that the recipients of the letters needed to hear their complaints and opinions about her conduct because she was the voice of business in their region. The Defendants say that their opinions were expressed in a measured manner and were of public interest to the entire business community, including the 300 Chamber members.

[23] Regarding the merits-based burden, the Defendants submit that the Plaintiff does not meet the test. First, her claim does not have a real prospect of success because her termination was not due to the letters written by the Defendants. Rather, she was terminated due to racist and homophobic statements that she made in the presence of student employees. The Defendants rely upon the Chamber’s termination letter dated August 4, 2021, and a subsequent letter from Chamber’s counsel dated October 1, 2021, dealing with information that has given rise to after-acquired cause. Second, the Defendants rely upon the defences of qualified privilege and fair comment. Qualified privilege attaches to the letters written by them because they were members of the Chamber, they were made without malice, and the recipients of those letters had an interest in receiving them. Fair comment relates to the Plaintiff’s unprofessionalism and that her conduct negatively affected the Chamber’s reputation. The comments made by the Defendants were of public interest and they were based on facts.

[24] Regarding the public interest hurdle, the Defendants similarly argue that the Plaintiff has failed to meet this burden. The Defendants restate that she was not terminated from her position because of their letters but because of her inappropriate behaviours towards the members of the community. Weighed against that are the Defendants’ concerns regarding the betterment of the Chamber and the entire Gananoque business community. There are significant public benefits in allowing the Defendants to comment on the Chamber and its director.

The Plaintiff

[25] The Plaintiff says that the Defendants’ expressions of opinion are not related to the public interest. Rather, it is merely something that would arouse the public’s curiosity. The allegations made against her are related to competency and professionalism related to her job. She fails to see how her actions as an employee of a non-profit organization would be of substantial concern to the public. As such, the Plaintiff submits that the threshold burden has not been met.

[26] The Plaintiff says that her case has substantial merit. The Defendants’ letters speak for themselves and form the basis of a defamation claim. The letters were sent to multiple parties, referring to the Plaintiff and her reputation has been lowered because of the spoken words. Regarding the subsequent termination letters sent by the Chamber and its counsel, the Plaintiff submits that this additional evidence is not credible, and it does not support the Defendants’ motion. As for the defences of qualified privilege and fair comment, she argues that they will fail because there are grounds to believe that there is malice of the Defendants and there is a vitriolic tone to the letters.

[27] In terms of the last part of the test, the Plaintiff submits that the balancing exercise favours the dismissal of the motion. She reiterates that the Defendants attacked her on a reputational level. She was harmed, both in a monetary and non-monetary manner. She was in vulnerable position in comparison to the Defendants, who are all business owners that have made concerted and collective efforts to have her terminated from her position. She has no history of litigation. Had the Defendants not published those defamatory letters, her defamation action would not have been necessary.

ANALYSIS

Threshold burden

[28] It is undisputed that the underlying proceeding arises from the Defendants’ expression of opinions. Their letters are captured by the statutory definition of “expression”, as set out in s. 137.1(2) of the CJA. There is a clear nexus between the expression and the proceeding.

[29] The only issue to determine under this threshold burden is whether the Defendants’ letters relate to a matter of public interest, defined broadly. Under this stage, there is no qualitative assessment of the expression, and the burden is low. A generous and expansive interpretation must be given at this stage.

[30] The Defendants say that the expressions complained by the Plaintiff relate to the following public interest: the functioning of the Chamber and the conduct of its Executive Director.

[31] Broadly speaking, in my view, the functioning of an organization, whether it is for profit or non-profit, is not necessarily a matter of public interest. However, if one looks at the type of organization that is being operated and how it interacts with the community, then it may become a matter of public interest.

[32] In the case at bar, the organization in question is the local Chamber, located in a small community. As the Executive Director, one of the Plaintiff’s roles is to serve the membership of business owners in the community. To accomplish this task, she is required to interact and develop relationships with local businesses, the community at large, as well as local government officials. The Plaintiff’s role is highly visible and could be described as a public figure within the community.

[33] Although I have my doubts that this is truly a public interest matter, because the threshold burden is low and because of the Chamber’s unique positioning within this small community, expressions regarding the proper functioning of the Chamber and how the Executive Director conducts herself, could be seen as a matter of public interest. The Plaintiff plays a role aligning the interests of private businesses and public institutions, with the goal of creating a prosperous business community.

[34] The public interest does not have to involve the entire community. A segment of the community is sufficient. In this case, it is my view that there is public interest from both a segment of the membership of business owners and a segment of the community that are not members of the Chamber.

[35] I am therefore prepared to accept that the threshold burden is met. The burden now shifts to the Plaintiff to satisfy the court that there are grounds to believe that her claim has substantial merit, and that the Defendants have no valid defence.

The merits-based hurdle

Substantial merit

[36] I am of the view that the Plaintiff’s claim has a real prospect of success.

[37] In the Plaintiff’s defamation claim, she must prove three elements: (i) the words refer to the Plaintiff; (ii) the words have been published to a third party; and (iii) the words complained of are defamatory in that they tend to lower the Plaintiff’s reputation in the eyes of a reasonable person.

[38] The Defendants argue that the Plaintiff’s claim is speculative, at best. I disagree.

[39] The Defendants collectively wrote four letters.

[40] Each letter clearly refers to the Plaintiff.

[41] Each letter was addressed to a third party, namely Mr. Rocco Rossi, President & CEO of the Ontario Chamber of Commerce. Copies of the letters were also sent to other individuals at the Ontario Chamber of Commerce, at the Canadian Chamber of Commerce, and to members of the Chamber.

[42] The defamatory words include the following:

i. She is well known for expressing her negative views on Facebook / Social Media / in-person towards anyone who goes against her. And she keeps that vendetta going until she is satisfied that she “won”. ii. Her schoolyard bullying tactics are the kind of rhetoric that is potentially damaging to any business. iii. This year we struggled with the decision to renew our Chamber membership, especially after Ms. Kirkland’s attempt to tarnish our reputation within the town. iv. She consistently displays a lack of professionalism, eloquence, dignity, and unbiased behaviour necessary to execute the position of Executive Director… v. …she has proven to be a poor, and potentially damaging ambassador of local business. vi. We find that it is her practice to slander to anyone and everyone, any business or people she finds not in agreement and voice contrary thoughts to her. vii. Ms. Kirkland’s meddlesome, rogue conduct has divided businesses and is thwarting any possibly of smooth operation of Town business. She pits business owners against each other creating false narratives, causing vendettas that will take time and care to repair. viii. When the owner tried to cut her short and introduce us, she crassly thrust her breasts within inches of my husband’s body, up on her tip-toes in a manner that declares dominance. ix. Her modus operandum is a disrupter of everything she wishes to control. x. This is the gossipy, immature High school mentality that represents our Chamber of Commerce.

[43] The words spoken are accusations of improper conduct. They attack the Plaintiff’s professionalism and integrity. These words would tend to lower her reputation because she is accused of being a bully, a liar, a vindictive person, a slanderer, a gossiper, a meddler, an aggressor, and on one occasion, a person that flaunts her breasts in public.

[44] Regarding the additional evidence that was filed, it is true that the Chamber’s termination letter and subsequent counsel letter regarding after-acquired cause information do not explicitly refer to the Defendants’ four defamatory letters. However, the fact that the Defendants’ expressions of opinion are absent from those letters is insufficient to prove that the Plaintiff’s claim is without merit. It could be inferred that the Plaintiff’s termination was partially related to those defamatory letters.

[45] The termination letter reads in part as follows: “As you know, we have concerns with your professionalism, culminating with events of July 26th.” The events of July 26, 2021, refer to the Plaintiff’s alleged use of inappropriate language during a public appearance. But the Chamber uses the word “culminating” to describe the Plaintiff’s final incident regarding her professionalism, meaning that there were other incidents where she demonstrated a lack of professionalism. In the Statement of Defence, the Chamber sets out the Plaintiff’s failures to perform the essential duties of her position, relating mostly to financial issues. The Chamber does acknowledge in its Statement of Defence that, in the Spring of 2021, they were made aware of multiple complaints about the Plaintiff’s professional behaviour and ethics. While the Chamber expressly denies that these complaints caused the termination, one could infer that the Chamber’s previous concerns regarding her lack of professionalism, which culminated on July 26, 2021, are associated with these complaints received by the Defendants.

[46] Accordingly, I am persuaded that there are grounds to believe that the Plaintiff’s claim has substantial merit.

No Valid Defences

[47] Turning to the defences, the Defendants asserts two of them: qualified privilege and fair comment. I find that the Plaintiff has shown that there are grounds to believe that these defences are not valid.

Qualified Privilege

[48] The first defence is qualified privilege. The Defendants say that it arises because they had social and personal duties to send the letters and that each of the Chamber, Ontario Chamber of Commerce and the Canadian Chamber of Commerce had a duty and interest in receiving the letters.

[49] This defence can be defeated if there is malice and if the letters were sent to an inappropriate or excessive number of people.

[50] Some of the recipients of the letters were not the Plaintiff’s employer, others were third parties. Not all the recipients had a duty or interest in receiving the Defendants’ letters. During cross-examinations, one of the Defendants admitted that the Ontario Chamber of Commerce and the Canadian Chamber of Commerce were not linked to the Chamber or had oversight on the Chamber. In my view, several recipients were not relevant and should not have received these letters.

[51] There are grounds to believe that the Defendants’ letters were motivated by some form of ill-will towards the Plaintiff and that they recklessly disseminated the letters. As noted above, the words spoken went beyond criticizing her job performance. The words used in the letters were of a personal nature. In my opinion, taken as a whole, the purpose of the letters was mostly meant to demean or belittle her, and not because of a general public interest for the local businesses and citizens of the community. Furthermore, some of the accusations made by the Defendants were made without any supporting evidence or foundation.

[52] Therefore, there are grounds to believe that the defence of qualified privilege does not have a real prospect of success.

Fair Comment

[53] The defence of fair comment will fail if there are grounds to believe that there is evidence of malice, if the comment is not based on fact, or if it is not recognizable as comment.

[54] I disagree with the Defendants that the fundamental theme or opinion expressed in the letters was that the Plaintiff was unprofessional in her capacity as the Executive Director of the Chamber and that her conduct negatively affected the Chamber. Taken as a whole, the words spoken by the Defendants went beyond this theme. It was not a mere expression of unprofessionalism, but rather an attack on her character.

[55] The evidence before me suggests that the Defendants’ opinions went beyond their concern for the Chamber. In my view, and as described in greater detail in my analysis of the public interest hurdle, there is an element of ulterior or indirect motivation, one that is tied directly to the Defendants’ personal circumstances, as opposed to the public interest.

[56] On the record before me, I do not find that all the Defendants’ comments explicitly or implicitly indicate on which facts that the comments are being made. There is an insufficient factual foundation to allow the reader to make up their own mind on the merits.

[57] Some of the Defendants’ comments go beyond a statement of opinion. They can be interpreted as an expression of fact, and not recognized as comment.

[58] Accordingly, I find that there are grounds to believe that the defence of fair comment will fail.

Public interest hurdle

[59] Starting with the potential and actual harm, the Plaintiff alleges that she lost her employment because of the defamatory letters written by the Defendants. Furthermore, she was attacked on a reputational level.

[60] The Defendants argue that the Plaintiff’s evidence on this motion is inconsistent and is largely inadmissible.

[61] The Plaintiff needs to provide evidence that there is a likelihood in respect to the existence of the harm and a relevant causal link.

[62] In this case, there are two types of harm that are alleged: monetary and reputational.

[63] Regarding monetary harm, it is important to note that in a claim for defamation, general damages do not have to be proven. Also, it is not necessary to monetize the damages at this stage.

[64] Reputational harm can be significant, especially in a small community. In Pointes, at para. 69, the Supreme Court of Canada reminds us that “reputation is one of the most valuable assets a person or business can possess.”

[65] In my view, the Defendants’ expressions of opinion attacked the Plaintiff’s character and because of the damning nature of these opinions, I can infer that there is a likelihood of significant harm to her reputation.

[66] The Plaintiff has therefore met the burden of demonstrating the likelihood of monetary and reputational harm.

[67] Turning to the qualitative assessment of the public interest, this is known as the “crux or core of the s. 137.1 analysis”: Pointes, at para. 82. As part this weighing exercise, the court is to scrutinize the expression and determine whether it is worthy of protection. In trying to ascertain what is truly going on in this case, the factors to consider include the following:

i. The Defendants’ motive for the expressions of opinions. ii. The vitriolic nature of the Defendants’ expressions of opinions. iii. The history of the Plaintiff using litigation or threat of litigation to silence her critics. iv. The financial or power imbalance that strongly favours the Plaintiff. v. The punitive or retributory purpose animating the Plaintiff’s bringing of the claim. vi. Minimal or nominal damages suffered by the Plaintiff.

The Defendants’ motive for the expressions of opinions

[68] The Plaintiff believes that the Defendants’ actions are in a direct response to her dispute with one of their friends and colleagues, Denis O’Connor. She and Mr. O’Connor do not get along, and there have been incidents between them. Furthermore, Mr. O’Connor and his brother are embroiled in a lawsuit. The Plaintiff gave a statement to the brother’s counsel, favouring his position. She submits that the Defendants’ letters were written shortly after this statement.

[69] The Defendants say that the Plaintiff’s evidence in support of her theory regarding Mr. O’Connor is not credible. I disagree.

[70] The Plaintiff’s theory is plausible. In 2021, the Defendant Catchpole published this venomous post on Facebook regarding the Plaintiff:

A third party prominent town bully whose job it is to promote local businesses (but doesn’t actually live in town) orchestrated the interference and sabotage of a Town Councillor and his business for her own personal gain. Her gossipy 3 year narrative was largely ignored by those intelligent enough to know better, yet she managed to enroll two other local bully business owners who also have a vendetta with the Councillor and, willingly repeated her dictated, fabricated narrative…in writing…sadly resulting in this public interference with private family businesses. We can ALL end this divisiveness by simply NOT SHARING. Let it die on social media. What a concept.

[71] The Town Councillor referred to in the foregoing post is Mr. O’Connor. Mr. O’Connor is well-known to Defendant Catchpole. He operated his art gallery in commercial space owned by Defendant Catchpole, who is also an artist. In addition, Mr. O’Connor represents and sells her art, as well as her husband’s art. She considers Mr. O’Connor a good friend.

[72] During her cross-examination, Defendant Catchpole testified that the Plaintiff should not have meddled in Mr. O’Connor’s personal family matter. She said that the Plaintiff had “crossed the line.” She acknowledged that the Plaintiff’s involvement with Mr. O’Connor’s brother encouraged her to write her letter dated May 3, 2021.

[73] The Defendant Catchpole’s Facebook post is very personal, it relates to Mr. O’Connor, and in my view, informs the personal motives that are behind her expressions of opinion as set out in her letter.

[74] Regarding the Defendants Campey and Mears, they also have personal motives, namely a financial one. The Defendant Campey operates The Woodview Inn, and the Defendant Mears operates the Seaway Manor Bed & Breakfast. Their letters set out the Plaintiff’s failures in promoting their respective businesses. They appear to be more concerned with their personal financial interests as opposed to the public interests.

The vitriolic nature of the Defendants’ expressions of opinions

[75] The Defendants acknowledge that their written observations of the Plaintiff were not kind. It goes beyond being unkind. I have already commented on the vitriolic nature of the Defendants’ expressions of opinions. The personal attacks on her character were uncalled for. The Defendants could have easily expressed their dissatisfaction with her work as an Executive Director without using defamatory statements.

[76] The type of statements made by the Defendants deserves very little protection.

[77] The significant harm to the Plaintiff’s professional reputation in her small community, outweighs the nominal public interest in the Defendants’ derogatory and pointless remarks. As the Court of Appeal stated in Thorman v. McGraw, at para. 31, permitting a “claim for defamation to proceed will not deter others from speaking out; rather, it will encourage others to express themselves in a measured and responsible way.”

[78] There is no evidence before me that the Plaintiff has previously used litigation or threatened to use litigation to silence her critics.

The financial or power imbalance

[79] While not significant, the power imbalance exists. The Plaintiff is a single mother, working for a non-profit organization, and earning an annual salary of $41,000. Conversely, the Defendants are all business owners and entrepreneurs.

The punitive or retributory purpose animating the Plaintiff’s claim

[80] The Plaintiff was terminated from her employment, and there are grounds to believe that her termination is related or partially related to the Defendants’ defamatory expressions of opinion. The Plaintiff is seeking damages for the harm that she suffered because of the Defendants’ actions. I do not view the purpose of her claim to be punitive or retributory.

Damages suffered by the Plaintiff

[81] I acknowledge that the Plaintiff was able to secure another job, albeit not immediately, after her termination from the Chamber. As noted earlier, general damages for defamation need not be proven.

[82] Also, and importantly, one’s reputation is the most valuable asset that a person can possess. The reputation needs to be protected from gratuitous attacks.

[83] For these foregoing reasons, I conclude that the Defendants’ expressions of opinion are not worthy of protection. The Plaintiff’s harm outweighs the public interest.

MISCELLANEOUS

[84] Separate and apart from the Defendants’ Anti-SLAAP motion, during argument, the Defendant Nagy sought a dismissal of all claims against him on the basis that there is cogent and compelling evidence that he played no part in those letters.

[85] The Defendant Nagy is seeking summary judgment against the Plaintiff, which does not form part of the relief sought out in the Notice of Motion.

[86] The Defendants are only seeking an order under s. 137.1 of the CJA. As such, I do not find it appropriate to grant Defendant Nagy’s request.

CONCLUSION

[87] The Defendants’ motion is dismissed.

[88] The parties are encouraged to resolve the issue of costs. If they are unable to do so, the Plaintiff shall file and serve her written submissions, limited to three pages, excluding Offers to Settle and a Bill of Costs, within 30 days of these Reasons for Decision. The Defendants shall file and serve their written submissions, within 15 days thereafter, with the same page restrictions.

M. Smith J Released: February 6, 2023

COURT FILE NO.: 21-104 DATE: 2023-02-06

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Amy Kirkland Plaintiff (Responding Party)

– and –

John Nagy, Stephen Campey, Colin Mears, and Jeannie Catchpole Defendants (Moving Parties)

REASONS FOR DECISION

M. Smith J Released: February 6, 2023