COURT FILE NO.: CV-22-88853

DATE: 2024-09-13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dr. Frank Fowlie, Plaintiff

AND

David Spinney, Ahmed Shamiya, and Mara Schiavulli, Defendants

BEFORE: The Honourable Madame Justice H. Williams

COUNSEL: Andre Marin and Adam P. Strombergsson De Nora, Counsel for the Plaintiff

Justin Safayeni and Olivia Eng, Counsel for the Defendant David Spinney

Ahmed Shamiya, Self-Represented Defendant

Kevin Caron and Logan Stack, Counsel for the Defendant Mara Schiavulli

HEARD: March 7 & 8, 2024

REASONS FOR DECISION

Williams, J

OVERVIEW

[1] The Defendants David Spinney, Ahmed Shamiya and Mara Schiavulli each brought motions under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, to dismiss Dr. Frank Fowlie’s defamation action[^1] against them on the basis that it is a strategic lawsuit against public participation, more commonly referred to as a SLAPP.

[2] Defamation suits are a way to vindicate an individual’s personal or professional reputation in the face of attack but can have the undesirable effect of suppressing the open debate that is the cornerstone of a free and democratic society. For this reason, certain provincial legislatures have targeted strategic lawsuits against public participation (“SLAPPs”), or actions that disproportionately suppress free expression on matters of public interest. (Hansman v. Neufeld, 2023 SCC 14, at para. 2.) One of these provincial legislatures is that of Ontario.

[3] For the reasons below, I allow the Defendants’ Motions and dismiss Dr. Fowlie’s action. The Defendants have satisfied me that the statements Dr. Fowlie has identified as defamatory all relate to a matter of public interest. Although Dr. Fowlie has shown that there are grounds to believe that his action against all three Defendants has substantial merit and that Mr. Spinney and Mr. Shamiya have no valid defences, Dr. Fowlie has not satisfied me that the public interest in allowing his action to continue outweighs the public interest in protecting the expression.

Motions under s. 137.1 of the Courts of Justice Act: Some Preliminary Considerations

[4] Sections 137.1 to 137.5 of the Courts of Justice Act appear under the heading Prevention of Proceedings that Limit Freedom of Expression on Matters of Public Interest (Gag Proceedings.)

[5] The purposes of these sections are set out in s. 137.1(1) and are to encourage individuals to express themselves on matters of public interest, to promote broad participation in debates on matters of public interest, to discourage the use of litigation as a means of unduly limiting expression on matters of public interest and to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

[6] Section 137.1(3) provides that, subject to s. 137.1(4), a proceeding is to be dismissed if the judge is satisfied that it arises from an expression that relates to a matter of public interest. Sections 137.1(3) and (4) are reproduced below:

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

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

(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding;

And

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

[7] Section 137.1 places an initial burden on the moving party — the defendant in a lawsuit — to satisfy the judge that the proceeding arises from an expression relating to a matter of public interest. Once that showing is made, the burden shifts to the responding party — the plaintiff — to satisfy the motion judge that there are grounds to believe the proceeding has substantial merit and the moving party has no valid defence, and that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. If the responding party cannot satisfy the motion judge that it has met its burden, then the s. 137.1 motion will be granted, and the underlying proceeding will be consequently dismissed. (1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, at para. 18.)

[8] The final weighing exercise under s. 137.1(4)(b) is the fundamental crux of the analysis. (Pointes Protection, at para. 18.)

[9] An anti-SLAPP motion is a screening mechanism and engages a limited review of the merits and defence of the action. (2110120 Ontario Inc. v. Buttar, 2023 ONCA 539, at para. 33.)

THE FACTS

[10] In September 2020, Dr. Fowlie became the Complaints and Appeals Officer (“CAO”) for Wrestling Canada Lutte (“WCL”), the national governing body for amateur wrestling in Canada. Dr. Fowlie remained in that position for about one year.

[11] Dr. Fowlie is a former member of the Royal Canadian Mounted Police. He has a doctorate in conflict resolution. Over the years, he has held numerous paid and voluntary positions with various sports organizations. Since July 2021, Dr. Fowlie has been a member of the Immigration and Refugee Board of Canada.

[12] WCL had established an independent complaints and discipline process, which included the CAO position, following the release of a report in December 2018 that had concluded that verbal, physical and psychological abuse was systemic in Canadian wrestling. The report was prepared by lawyer David Bennett. The 2018 Bennett Report concluded that athletes and others had no confidence in the WCL complaints mechanism that was in place at the time and that many were afraid that complaints would result in reprisals.

[13] The independent complaints and discipline process implemented at WCL following the 2018 Bennett Report was to ensure enforcement of WCL’s Code of Conduct, which applied to everyone affiliated with the organization, including wrestlers, coaches, officials, volunteers and parents.

[14] The CAO role was central to the independent complaints and discipline process. Although Dr. Fowlie’s counsel suggested otherwise, I am satisfied that the CAO position was a powerful one. The CAO received complaints from athletes and others. The CAO determined whether a complaint should be dismissed on the basis that it was frivolous or whether it should be investigated. If the CAO decided a complaint should be investigated, then following the investigation, the CAO would decide whether the file should be closed or whether it should proceed to a hearing before an adjudicator. I am also satisfied that the CAO, as the intake person for complaints, was required to consider often sensitive issues and handle confidential information.

[15] The independent complaints and discipline process at WCL did not have a smooth debut. Dr. Fowlie was the fourth CAO to be appointed following the implementation of the process. The first three CAOs had been removed from the position after their independence and suitability were called into question.

[16] Mr. Spinney, Mr. Shamiya and Ms. Schiavulli all had encounters with Dr. Fowlie while Dr. Fowlie was acting in the capacity of WCL CAO. Each had concerns about how Dr. Fowlie conducted himself. Each sent emails to Dr. Fowlie and to individuals involved in the wrestling and the amateur sports communities and others in which they were highly critical of Dr. Fowlie.

[17] Dr. Fowlie says the three Defendants conspired against him for doing his job. Dr. Fowlie says that between February 2021 and December 2021, the Defendants sent “vicious, cruel and false” emails that were clearly intended to hurt him personally and to ruin his reputation. Dr. Fowlie relies on many of these emails in support of his claim for defamation against the three Defendants and has reproduced them, or excerpts from them, in his statement of claim.

MR. SPINNEY

[18] Mr. Spinney is an investment advisor who has more than 20 years experience as a wrestling coach. Mr. Spinney coaches at Western University.

[19] Mr. Spinney says that, for years, he has advocated on behalf of wrestlers who have suffered harassment, abuse, inappropriate conduct and/or other forms of maltreatment. Mr. Spinney says he has also supported wrestlers by assisting them in reporting abuse to appropriate authorities and pursuing matters within the discipline and complaint process provided by WCL. Mr. Spinney says he has also advocated with the sports community and government in efforts to prevent maltreatment of wrestlers and to encourage reporting and independent adjudication of complaints.

[20] Mr. Spinney has also participated in a group of coaches, parents and athletes who have been affected by abuse known as VOWL, which stands for Victims of Wrestling Leadership.

[21] Mr. Spinney says that his role as an advocate for wrestlers has often pitted him against some of the powerful people within WCL but that he nonetheless has a positive relationship with the organization’s current executive director and high-performance director and notes that he was selected to be one of two coaches for Team Canada at the 2023 World Championships.

[22] Mr. Spinney says that he had never met Dr. Fowlie before Dr. Fowlie became the WCL CAO.

[23] Mr. Spinney says that most of the emails he wrote that are alleged to be defamatory were either in the context of or related to two complaints against him under WCL’s complaints and discipline process. The complaints were made by WCL’s now former high-performance director, Lucas Ó’Ceallacháin. Mr. Ó’Ceallacháin had complained: (1) that Mr. Spinney and a female wrestler named Madison Parks were having a sexual relationship which had not been disclosed to WCL; and (2) that Mr. Spinney was harassing him by sending him emails relating to his treatment of a female wrestler, Alexandria Town.[^2]

MR. SHAMIYA

[24] Mr. Shamiya is the head wrestling coach at McMaster University and at the Hamilton Wrestling Club, which he says is recognized as the national training centre for WCL. Mr. Shamiya is also a competitive wrestler. Like Mr. Spinney, Mr. Shamiya describes himself as an advocate for wrestlers. Mr. Shamiya says that he personally was sexually abused and subjected to race-based maltreatment as a young wrestler.

[25] Mr. Shamiya says he first learned about Dr. Fowlie through a female wrestling coach who had consulted him about making a complaint about a sexual assault by a wrestling official. Mr. Shamiya says the coach was fearful of reprisals. Mr. Shamiya says the coach told him that she had been given Dr. Fowlie’s contact information, but after Googling him, she had concerns about the type of person he was.

[26] Mr. Shamiya says the coach had located a 2010 article from The Globe and Mail that had described efforts by Dr. Fowlie to require the Canadian Transportation Agency to remove his name from a decision the agency had published following a complaint Dr. Fowlie made against Air Canada. The article said that in the underlying complaint, the Canadian Transportation Agency (“CTA”) had ruled against Dr. Fowlie and questioned his credibility because he had altered some notes he had made. The article explained that on a flight from Paris to Montreal, Dr. Fowlie “didn’t get his meal choice and started shouting and swearing.” The CTA had found that Dr. Fowlie’s behaviour during a flight had been “abusive and offensive” The story was newsworthy in part because, at the time, Dr. Fowlie was ombudsman for an agency that manages internet domain names. The CTA refused to remove Dr. Fowlie’s name from its decision.[^3]

[27] Mr. Shamiya says the same coach told him that she had seen a letter Dr. Fowlie sent to members of the wrestling community, in which Dr. Fowlie had disclosed that Ms. Parks was being investigated for having a relationship with her coach. Mr. Shamiya said the coach had told him that she had concerns that if she made a complaint, Dr. Fowlie might violate her privacy as well.

[28] Mr. Shamiya says he believed that, as a coach, he had a duty to speak out about Dr. Fowlie. Mr. Shamiya said that if a CAO cannot be trusted to maintain confidentiality, it is less likely that victims of abuse will come forward and file complaints.

MS. SCHIAVULLI

[29] Ms. Schiavulli is the mother of Ms. Parks, the wrestler coached by Mr. Spinney who was alleged to have been having a sexual relationship with Mr. Spinney.

[30] Ms. Schiavulli says she has always spoken out to protect her daughter and to promote a healthier and safer environment for wrestlers. She says the competitive wrestling environment can be particularly challenging for young women.

[31] Ms. Schiavulli says she had concerns about how Dr. Fowlie was handling the complaint about Mr. Spinney and her daughter. Ms. Schiavulli says that Dr. Fowlie contacted Ms. Parks while she was preparing for a competition, asked her to confirm that she was having a relationship with Mr. Spinney, referred the complaint to an investigator despite Ms. Parks’ denial, and then circulated details of the complaint, including Ms. Parks’ name, to several people affiliated with WCL.

[32] Ms. Schiavulli says she became more concerned when she became involved with VOWL (Victims of Wrestling Leadership, mentioned above) and learned that shortly before Dr. Fowlie had referred the complaint involving her daughter to an investigation, he had dismissed allegations that Mr. Ó’Ceallacháin had abused Ms. Town, a vulnerable female athlete.

THE EMAILS

[33] Mr. Spinney, Mr. Shamiya and Ms. Schiavulli all sent emails to various recipients in which they complained about Dr. Fowlie’s conduct, his reputation and his appropriateness for the CAO position.

[34] Fowlie reproduced the portions of these emails he considered to be defamatory in his 51 page, 122 paragraph Statement of Claim. Dr. Fowlie identified 14 emails written by Mr. Spinney, seven emails written by Mr. Shamiya, a YouTube video posted by Mr. Shamiya and five emails written by Ms. Schiavulli.

[35] Although the emails were included in the record in their entirety, and I have reviewed and considered them in their entirety, in this portion of these reasons, the information about the sender and recipients of the emails and the excerpts and summaries of their contents are based on the Statement of Claim and not the original documents.

Mr. Spinney’s Emails

[36] In his Statement of Claim, Dr. Fowlie pleaded that:

On February 23, 2021, Mr. Spinney sent an email (Spinney #1) to Dr. Fowlie and Ms. Parks and sent a copy to Cayley Thomas, whom Dr Fowlie retained to investigate the complaint involving Ms. Parks. Mr. Spinney wrote, “[t]his is a very clear and transparent reprisal for the efforts I have made to stand up to abusive men in the wrestling community. I have no doubt that there is a close connection between the complainant(s) and those who have been the subject of my recent criticisim.” Mr. Spinney asked that neither Dr. Fowlie nor Ms. Thomas contact him or Ms. Parks again until they were formally charged. Mr. Spinney said, “[y]ou are in possession of evidence regarding how a powerful man in the wrestling community defames, demeans, and harasses Ms. Parks relating to these same allegations that you are now investigating and so, please cease contacting her until you convene a Panel.” Mr. Spinney said that Ms. Parks was trying to help Canada qualify for the Olympics and that “your treatment of her thus far has been very damaging—it begs the question as to whether you are actually trying to sabotage her or if you are completely clueless with respect to what it takes for these athletes to succeed at the highest level…”

[37] In an email to Dr. Fowlie dated March 24, 2021 (Spinney #2), copied to lawyer Erin Durant, a lawyer and investigator, Mr. Spinney wrote that he believed that “in the not too distant future, a court of law will determine that you have demonstrated a reasonable apprehension of bias (or worse)…”

[38] In an email dated May 2, 2021 (Spinney #3) to Ms. Durant, Dr. Fowlie, the Director General, Sport, for Heritage Canada, Vicki Walker, WCL’s executive director, Tamara Medwidsky and York University wrestling coach, Eamonn Dorgan, Mr. Spinney wrote that “what Frank Fowlie/WCL did to Madison Parks these past few months was precisely the kind of reprisals that we have described to you for years…” Mr. Spinney asked Ms. Walker whether Dr. Fowlie’s decision to “publicly shame” Ms. Parks troubled her. Mr. Spinney then wrote:

• Perhaps you have the courage to tell victims that Frank Fowlie is independent, neutral and that he creates no apprehension of bias.

• Perhaps you can tell those victims to forget what Frank Fowlie just did to Madison parks (sic). Tell those victims to ignore what happened to Alexandria Town, and other athletes who tried to speak out against abuse. Tell those victims that what WCL’s HPD Lucas did to Alexandria Town at the last Canada Cup is no big deal…that queer female athletes should expect and accept that kind of terrifying treatment from powerful men in wrestling.

• Frank Fowlie constantly reminds us that he is an ex-RCMP officer and so perhaps you, as the most powerful woman in sport, can explain to Black and Indigenous victims of sexual violence that they should have full confidence in a retired Caucasian RCMP officer from the 1980s or ‘90s who has a disturbing tribunal record of abusing those who he perceives as less powerful than them. Perhaps, you can tell victims of sexual violence that when it comes to hearing their disclosures of abuse in wrestling, Frank Fowlie is the right man for the job.

[39] In a second email dated May 2, 2021 (Spinney #4), Mr. Spinney wrote to Dr. Fowlie and sent copies to Ms. Medwidsky and Ms. Walker. Mr. Spinney said that he had been under investigation by Dr. Fowlie for 12 weeks and that; “I think we can agree that 12 weeks is an excessive amount of time for you to determine if you can muster up enough evidence to advance these reprisals against me.” Mr. Spinney said that Dr. Fowlie’s decision “will impact how I proceed with WCL, Sport Canada, the media, elected representatives, etc.”

[40] In an email dated May 3, 2021 (Spinney #5) to Dr. Fowlie, copied to Ms. Durant and Ms. Medwidsky, Mr. Spinney wrote:

“I can assure you that all of the people who I have included in my correspondence had more to do with these discipline proceedings than those people in Madison’s peer group who you contacted to share Lucas’s salacious allegations…you sure showed Madison who’s boss when you publicly shamed her, didn’t you, Frank Fowlie. You must have felt like a real tough guy when you got your revenge against Madison for scolding you in front of Sport Canada.

You behave like a classic former cop thug, Frank Fowlie, plain and simple. This is why WCL hired you. With your terrible treatment of Madison Parks, you have certainly lived up to your billing as a misogynist who is willing to demean and shame those who do not sufficiently bend to your will.

I realize that you are desperate for something… anything that that you can use to retaliate. I appreciate that it must sting realizing that we all know that a tribunal has already found that you are an abusive angry man who is willing to engage in deceitful practices in order to fit your false narratives… literally the perfect fit for WCL! …

But when powerful men like Frank Fowlie who have a proven/established reputation for thuggery attempt to behave lake a bully, then I will stand up to this nonsense with a bit more gusto.

This is a joke and Frankie Fowlie, you are a joke.”

[41] On July 5, 2021 (Spinney #6), Mr. Spinney wrote to Dr. Fowlie with copies to Ms. Medwidsky, Jordan Goldblatt, who was counsel to WCL, Mr. Shamiya, Mr. Dorgan, VOWL member Olana Thomson and Ms. Durant. Mr. Spinney’s email included the following:

Frank Fowlie, now that you are personally named in Alexandria Town’s lawsuit you may see this as a wakeup call. I will be watching how the court views your very clear double standards toward complaints. When an enemy of WCL leadership makes an allegation of abuse, you tell them they should try and go for a beer, but when abusive WCL staff make an allegation against the man who is exposing abuse you immediately hire 2 lawyers and a policy officer…truly amazing! Good luck to you Frank. Perhaps you thought you could come into the sport of wrestling and treat athletes and coaches the way you treat airline staff, but it was never going to be permitted on my watch. I trust you will behave more professionally moving forward—if, in fact, your role with WCL remains intact, which at this point seems doubtful to me. Regardless, I will make it my goal to ensure that you will feel some lasting effects from your tenure at WCL. You have advised me that the report of Erin Durant has been sent to a panel, and so kindly provide me with the report immediately. It is within your power to do so. I expect to receive the report by the end of the day tomorrow. Failure to provide me with the report will only complicate your growing legal problems. CCC 346(1.3)(2)

[42] On August 6, 2021, Mr. Spinney sent an email (Spinney #7) to Dr. Fowlie, Ms. Medwidsky, Mr. Goldblatt, the CEO of Own the Podium[^4], Anne Merklinger, and the CEO of the Sport Dispute Resolution Centre of Canada, Marie-Claude Asselin. The email included what Mr. Spinney characterized as settlement offers to Dr. Fowlie and to WCL. Mr. Spinney offered to release all claims against Dr. Fowlie if he resigned as WCL’s CAO and wrote a letter acknowledging that his conduct had created an apprehension of bias and expressing regret for having sent correspondence to the wrestling community in which he described allegations which would likely bring shame and humiliation to the individuals involved. Mr. Spinney said he would release WCL from all claims if it fired Dr. Fowlie and posted a message on its website critical of Dr. Fowlie’s conduct and stating that WCL holds those hired to deal with issues of safety to the highest standards and that conduct that undermines the confidence of the wrestling community will result in termination.

[43] In his email, Mr. Spinney referred to the four CAOs WCL had appointed, and said that WCL had an opportunity to demonstrate that it was changing its approach and would no longer tolerate misogyny and maltreatment within the organization.

[44] Mr. Spinney also said that if WCL had done its research on Dr. Fowlie, it would know that he is no stranger to making frivolous claims and that it should be forewarned that Dr. Fowlie might come after WCL.

[45] On August 9, 2021, Mr. Spinney wrote an email (Spinney #8) to Dr. Fowlie and copied to Ms. Medwidsky and Mr. Goldblatt. Mr. Spinney wrote:

You have appeared to demonstrate a historic propensity to irrationally digging your heels in even when you clearly are in the wrong. To be clear, I have no idea as to whether or not this is true, however, there are so many articles on the internet describing your failed legal actions that I have to ask myself; if this is the way you behave during your later years of life then I am certainly not holding out hope that you will suddenly develop the humbleness to admit when you have erred. Despite my pessimism I want the record to show (for a future court if necessary) that you were given every opportunity to do the right thing and accept my August 6th, 2021, settlement offer so that we might both save the time and expense of a lawsuit.

[46] Mr. Spinney included a link to an article in a journal that described itself as The Domain Industry News Magazine. The article was titled “Attempt to Silence Prominent ICANN[^5] Critic George Kirikos Fails as Legal Proceeding Filed Against Him by Former ICANN Ombudsman Frank Fowlie is Withdrawn.” The article said that Dr. Fowlie had filed a complaint about Mr. Kirikos with the Human Rights Tribunal of Ontario. The article said that Dr. Fowlie withdrew the complaint before Mr. Kirikos filed a response. The article referred to Dr. Fowlie’s complaint against Air Canada which it described as “highly publicized.” It also said that Dr. Fowlie had filed a complaint against the organizing committee for the 2010 Olympic and Paralympic games in Vancouver. It said that complaint was also withdrawn.

[47] On August 12, 2021, Mr. Spinney sent an email (Spinney #9) to Ms. Asselin, with a copy to Mr. Goldblatt. In this email, Mr. Spinney wrote that Dr. Fowlie had “demonstrated outrageous bias in the sport of wrestling” and “engaged in reprising behaviour against multiple coaches and athletes; reprisals he knew, or ought to have known, would cause damage to the victims and deepen a culture of fear and silence.” Mr. Spinney wrote that Dr. Fowlie had breached athlete confidence on multiple occasions, including inappropriately sending humiliating information to the peer group of a young woman immediately after she reprimanded him for his misogynistic conduct. Mr. Spinney said Dr. Fowlie’s behaviour at WCL was “consistent with his well-established public incidents of abuse and humiliation.” Mr. Spinney wrote: “Of particular concern is that Frank Fowlie has a well-documented tribunal history of engaging in deceitful behaviour intended to advance his own personal agenda.” Mr. Spinney said that; “a single Google search of Frank Fowlie quickly reveals that he has a public history of abusing others in a demeaning and physically imposing manner. There is no amount of resume building that erases Frank Fowlie’s public legacy as a man who victims of abuse, particularly Indigenous victims of abuse, would be likely to avoid.” Mr. Spinney wrote that if the Sport Dispute Resolution Centre of Canada (“SDRCC”) was genuinely interested in creating a safe space for victims to make sensitive disclosures, all involvement with Dr. Fowlie should be suspended until a comprehensive review was made to determine whether Dr. Fowlie’s association with the SDRCC decreased the likelihood that victims of abuse would make disclosures. Mr. Spinney said that in the interim, Dr. Fowlie’s name should be removed from anything associated with the SDRCC.

[48] In a further email dated August 12, 2021 (Spinney #10), Mr. Spinney wrote to arbitrator Daniel Ratushny, with copies to Ms. Medwidsky, Mr. Goldblatt, Dr. Fowlie and Mr. Ó’Ceallacháin. Mr. Spinney wrote:

In my efforts to support abused athletes, I am a volunteer and not a professional advocate, and so Mr. Goldblatt is likely far more capable expressing how Frank Fowlie’s behaviour raises concerns of bias/apprehension of bias.

But to be clear, this December 2, 2021 “go for a beer” response to receiving serious allegations of harassment is only a single incident in a much larger narrative establishing that Frank Fowlie’s behaviour and continued presence in wrestling creates a reasonable apprehension of bias. There is good reason that Alexandria Town has already filed her lawsuit in the courts against Frank Fowlie and Lucas Ó’Ceallacháin.

[49] On November 18, 2021, Mr. Spinney sent an email (Spinney #11) to Ilan Yampolsky, who replaced Dr. Fowlie as WCL CAO after Dr. Fowlie’s contract was terminated[^6]. In this email, Mr. Spinney wrote:

This nonsensical complaint of Frank Fowlie makes reference to "Criminal Harassment", once again - this is actually getting comical … I am aware that Frank Fowlie has attempted to make criminal complaints against me and others with the RCMP. The comments of the RCMP officer I spoke with recently confirm the same sentiments of WCL lawyer Jordan Goldblatt who has described Frank Fowlie as the "judge, jury, and executioner". I am sure you are aware that there are good reasons why you were hired and why Fowlie is no longer involved.

I recognize how angry Frank Fowlie must be to have his abhorrent, dangerous and tortious conduct exposed, resulting in his removal as WCL’s “independent” safety officer, but I have nothing further to comment as I will let the multiple lawsuits (some of which have already been filed in the courts) sort this man out.” Mr. Spinney also said: “If you do some research into Frank Fowlie, you will find that he has a rather inglorious and unsuccessful public history of attempting to convince tribunals of his perceived victimhood, only to have the adjudicators describe Fowlie’s abusive behaviour and then further comment on how Fowlie engaged in deceitful conduct with respect to his handling of evidence.

[50] On November 19, 2021, Mr. Spinney sent an email (Spinney #12) to Mr. Yampolsky, with copies to Ms. Durant, Mr. Goldblatt, Mr. Shamiya and Mr. Ratushny. The email summarized Mr. Spinney’s complaints about Dr. Fowlie. It was lengthy, taking up close to four and a half pages of Dr. Fowlie’s Statement of Claim. This email included the following comments about Dr. Fowlie:

• Mr. Spinney wrote that Dr. Fowlie demonstrated an “incredible double standard” in the way he responded to allegations against Mr. Ó’Ceallacháin made by Ms. Town on the one hand and, on the other hand, the complaint Mr. Ó’Ceallacháin’s made after Mr. Spinney warned Mr. Ó’Ceallacháin to cease all contact with Ms. Town or face a criminal complaint.

• Mr. Spinney wrote that Dr. Fowlie had retaliated against coaches from York University and McMaster University after they raised concerns about how victims of sexual harassment and abuse were treated. Mr. Spinney wrote:

Both the head coaches for York University and McMaster University publicly raised concerns about the appropriateness of expecting victims of abuse and harassment, particularly Indigenous victims of sexual abuse, to make disclosures to an older white man who brags about being a former police officer and who also has an established and public history of abuse and misogyny - a man who has been found to be physically imposing when engaging in his abuse. These concerns were especially important given WCL's troubled history of safety/complaints officers.

These coaches also raised concerns about Officer Fowlie’s disregard (“go for a beer”) for Ms. Town’s allegations of harassment.

In response to these expressed concerns, Officer Fowlie reprised against those coaches by sending communication to both York University and McMaster University - communication for which he did not copy either coach. For example, the York University Administrative Coordinator Lillian Chan has stated that the WCL Officer Frank Fowlie made a complaint to York about the York Wrestling Coach Eamonn Dorgan. Please remember that Coach Dorgan was the same coach who shared detailed allegations against HPD Ó'Ceallacháin with Officer Fowlie on December 2, 2020 (the "Go for a Beer" incident).

These letters of complaint from Officer Fowlie were not a bona fide effort to fulfill his specific duties as WCL Complaints Officer (as defined by either the SDRCC or WCL's Schedule A Statement of Work) - these letters to York and McMaster were reprisals against those coaches for their public commentary of the appropriateness of Officer Fowlie's role in WCL.

• Mr. Spinney wrote that Dr. Fowlie had publicly shamed Ms. Parks by disclosing highly sensitive allegations to members of the wrestling community.

• Mr. Spinney wrote that Dr. Fowlie communicated sensitive information to unknown parties when he began an email by saying that he did not know whom he was writing to but then set out information about Ms. Parks in the email. Mr. Spinney said that Dr. Fowlie had proven that he was willing to set aside professional expectations when it suits him. Mr. Spinney then said: “This should be no surprise because Frank Fowlie has a well-established public history of engaging in deceitful and manipulative conduct when advancing arguments in tribunal.”

• Mr. Spinney wrote that Dr. Fowlie, a former police officer, had told Ed Zinger [a wrestling referee] that Mr. Spinney had committed a crime against him, by telling Mr. Zinger that he was being “extorted” to resign from his volunteer role in WCL.

• Mr. Spinney wrote that Dr. Fowlie had made criminal complaints against Mr. Spinney and Mr. Shamiya to the police. Mr. Spinney said that Dr. Fowlie had identified himself to an RCMP officer as being the WCL’s Complaints Officer and had provided the officer email correspondence he had received in that capacity. Mr. Spinney said that Dr. Fowlie had not taken this information to the police because he was concerned that someone else was being victimized; he had attempted to convince the police that he was the victim of criminal activity on the part of Mr. Spinney and Mr. Shamiya.

• Mr. Spinney described Dr. Fowlie’s approach to the police as “a desperate attempt to exact revenge with a frivolous and vexatious complaint to the police, who obviously saw right through his antics.”

[51] On December 14, 2021 (Spinney #13), Mr. Spinney sent an email to an RCMP officer, Constable Kung. Mr. Spinney wrote that Dr. Fowlie “has engaged in abuse/maltreatment as defined, in part, by the Universal Code of Conduct to Prevent and Address Maltreatment in Sport.” Mr. Spinney wrote that Dr. Fowlie’s treatment of a young Indigenous woman who suffered abuse that would never have taken place if she were a heterosexual woman, was abhorrent and inexcusable. Mr. Spinney wrote that Dr. Fowlie behaved this way because it was in his financial best interest to do so. Mr. Spinney wrote that “former RCMP officer Frank Fowlie weaponized a criminal complaint to the RCMP in order to try and silence those who were acting as whistleblowers and exposing his role in abuse/maltreatment in the sport of wrestling.” Mr. Spinney wrote that men in positions of WCL leadership, like Dr. Fowlie, “have been able to engage in all manner of abuse and maltreatment in order to silence victims, including Indigenous victims of sexual abuse.”

[52] In an email to Mr. Ratushny dated December 15, 2021 (Spinney #14), Mr. Spinney, referring to Dr. Fowlie, wrote; “…even I would not have predicted the extreme lengths that this latest WCL Complaints Officer would go to try and silence me and my witnesses. He has made former WCL Complaints Officer Adam Klevina’s behaviour seem professional by comparison. I can’t imagine a more perfect example of retaliation from a man who is presently claiming to the RCMP and others that he is still a WCL Complaints Officer (let me know if you would like me to get you evidence of this.)” Mr. Spinney also wrote that Dr. Fowlie “has an established historical tribunal record of nefariously advancing complaints against those who he believes have wronged him. Within tribunal settings, Fowlie has been found to be abusive against those who he complains about. Even more concerning, Fowlie has been found to be deceitful with respect to his manipulation of evidence as he advances frivolous complaints.” Mr. Spinney went on to write that during the period that Mr. Ó’Ceallacháin’s complaints were being investigated, he (Mr. Spinney) was actively involved in raising safety concerns involving six incidents of abuse and professional misconduct on the part of Dr. Fowlie.

Mr. Shamiya’s Emails

[53] In his Statement of Claim, Dr. Fowlie pleaded that on February 21, 2021, Mr. Shamiya wrote an email (Shamiya #1) to the Minister of Sport, Kirsty Duncan, Ms. Walker, Ms. Asselin, the VOWL member Mr. Thomson, the Minister of Heritage, Stephen Guilbeault, Ms. Medwidsky and Dr. Fowlie. Mr. Shamiya wrote that Dr. Fowlie was “being selective” about what he heard and of declining to get the other side of the story. Mr. Shamiya wrote, “I am not surprised that a man who has already been found to be lacking in credibility is so obviously irritated by transparency.” Mr. Shamiya also wrote:

As a man of colour, I have many times witnessed white men attempting to use their positions of power and privilege to belittle others exactly as you are doing now. You are a bully plain and simple. Canadian sport in 2021 needs to be done with bullies and I want to be part of the solution. Real men stand up to bullies. I have no control if you leave Canadian sport, but I will do my best to have you leave the sport of wrestling.

[54] In the same email, Mr. Shamiya wrote; “Professional fact-finders have already found Frank Fowlie to have changed his notes in order to paint himself in a better light. As a result of his sneaky behavior, his credibility was called into question…” Mr. Shamiya also wrote that “Frank Fowlie has not reformed his bullying ways.”

[55] Mr. Shamiya asked Mr. Asselin to forward his email to her board of directors.

[56] On February 24, 2021, Mr. Shamiya wrote an email (Shamiya #2) to the same recipients as his previous email and added Mr. Spinney. Mr. Shamiya said that Dr. Fowlie had accused Ms. Thomson, the mother of an abused child, of using an email for purposes beyond the actual communication, rather than trying to have a meaningful conversation. Mr. Shamiya said Ms. Thomson was correct to have sent copies of her email to others and would have been careless not to have done so. Mr. Shamiya wrote; “I am not surprised that a man who has already been found to be lacking credibility is so obviously irritated by transparency.” The balance of Mr. Shamiya’s email was similar or identical to his email of February 21, 2021.

[57] On April 12, 2021, Mr. Shamiya posted a video (Shamiya #3) on YouTube and also sent the video to investigator Ms. Thomas, Sport Canada and the Prime Minister of Canada. In the video, Mr. Shamiya said that Dr. Fowlie “engaged in horrible behaviour in the past few months” and engaged in schemes “to silence victims of abuse, including sexual violence.”[^7]

[58] On April 12, 2021 (Shamiya #4), Mr. Shamiya also wrote to Ms. Medwidsky, with copies to Mr. Dorgan, Mr. Spinney and Ms. Thomas. In his email, Mr. Shamiya wrote that Dr. Fowlie’s “very public record of abuse and dishonesty should have been enough to disqualify him for the job, but I have come into new information which makes his involvement with wrestling even more problematic.” Referring to Ms. Town, Mr. Shamiya wrote that when the issue was abuse suffered by a woman who had been discriminated against because of her race, sexuality and gender, Dr. Fowlie “recommends ‘going for a beer’ with WCL leadership. However, when it comes to others (who just happen to be the enemies of wrestling leadership), Frank Fowlie seems to apply a completely different standard.” Mr. Shamiya asked if the WCL board of directors would be willing to replace Dr. Fowlie or to call a town hall meeting to discuss concerns about Dr. Fowlie. Mr. Shamiya wrote that if WCL failed to do either, he would reach out to the wrestling community himself. Mr. Shamiya wrote that he had spoken with a woman who had been sexually assaulted in wrestling who told him she would not disclose the abuse she had suffered to a man like Dr. Fowlie.

[59] On September 15, 2021, Mr. Shamiya wrote an email (Shamiya #5) to Dr. Fowlie, Ms. Durant, Mr. Ratushny, Ms. Medwidsky and Mr. Spinney. Mr. Shamiya wrote that lawsuits against Dr. Fowlie “will address his horrible behaviour as WCL Complaints Officer (not unexpected given his established tribunal history of abuse and deceit)…”

[60] On September 18, 2021 (Shamiya #6), Mr. Shamiya wrote to Dr. Fowlie, Ms. Medwidsky, Mr. Ratushny and Ms. Durant. Mr. Shamiya said that he believed that Dr. Fowlie was “a dangerous and abusive man who should not be involved in our sport.” Mr. Shamiya referred to “5 serious instances of disturbing behaviour of Frank Fowlie during his time in wrestling.” Mr. Shamiya wrote that Dr. Fowlie did not address the sender by their name or title when he received complaints. He then wrote:

Please add this to the growing list of examples of why it is reckless for WCL to expect that complainants and/or victims of abuse disclose abuse to a man who doesn’t even address the sender by name when he receives complaints, consistently behaves in a way that creates fears of bias, and who grotesquely violates the privacy of abused athletes. Officer Fowlie, You should not have to be repeatedly corrected on issues of professionalism/misconduct. Please do better when you communicate with people who make complaints.

[61] On September 19, 2021, Mr. Shamiya sent an email (Shamiya #7) to Dr. Fowlie with copies to Ms. Medwidsky and Ms. Durant. Mr. Shamiya noted that Dr. Fowlie continued to address him by his name, despite his request. Mr. Shamiya then wrote:

As a late aged Caucasian man who boasts about being a police officer from decades ago, and who has already been proven by a tribunal to be abusive and deceitful, I should not be surprised that you would not afford basic levels of respect to a young Muslim Palestinian. I note that you use your discretionary power to apply a grotesque double standard when you were provided allegations of abuse to a Queer BIPOC athlete against a Caucasian man. In that case, you recommended “going for a beer”. But when 2 Caucasian men wanted to make a complaint against a BIPOC coach after he spoke against the abuse of a BIPOC athlete you hired 3 lawyers and police officer (sic) to go after that BIPOC man. You, sir, are displaying transparent racism. As this young Black Indigenous Queer woman advances her lawsuit against you I will be keeping the Government of Canada apprised of the verifiable facts and evidence. Based on your historically verifiable behaviour I take the position that men who behave like you have no business dealing with refugees or immigrants while employed by the Government of Canada. When I start sending facts and evidence to the Government of Canada I look forward to your cease and desist letters almost as much as I look forward to a possible lawsuit or human rights complaint because after all Frank Fowlie, that is your historic record. I am aware that you make fake extortion allegations and so it is important that you are told that even if you start behaving better at this very moment there is nothing that you can do that will prevent me from exercising my right to keep the Government of Canada informed about matters of public record. You don’t have to like me Officer Fowlie by as a WCL Complaints Officer you do have to afford basic levels of respect to complainants. Once again, I insist that you begin behaving better; my name is Ahmed Shamiya.

[62] On September 21, 2021, Mr. Shamiya sent an email (Shamiya #8) to Dr. Fowlie, Ms. Durant and Mr. Ratushny. Mr. Shamiya wrote:

Dear Government of Canada, and/or Commissionaire of Inquiry, and or Trial Judge, and or Human Rights Tribunal,

Even though you will not likely be reading this correspondence for a period of weeks or months I am addressing you in advance to establish for the record that I am aware of the nefarious games that Frank Fowlie continues to play, however, I am never-the-less participating in good-faith in this WCL Discipline Process even though it is biased and not genuinely attempting to address issues of athlete safety.

I also wanted to point out to you the enormous amount of effort and pressure it took just to have Frank Fowlie demonstrate the most basic levels of respect to address me by name. As you consider Frank Fowlie's abusive past, his 5 Instances of Misconduct, and his unwillingness to even respect a complainant's wishes to be addressed by name, I ask yourself if you think this is the kind of man who victims of abuse, particularly racialized victims of sexual abuse, would feel safe making disclosures too. WCL Officer Fowlie's behaviour is a textbook example of how WCL has been able to help silence victims of abuse for so many years.

WCL Officer Fowlie,

Thank you for referring to me by name.

I realize that you liken yourself to a victim (you have an established public history of falsely claiming you have been mistreated). Although I think it is most likely that you are behaving as a "hired gun" for WCL (just like the previous 3 Safety Officers), I am willing to consider the possibility that you are not being sinister but instead you possibly genuinely operate from a belief system suffering from grand delusion. Let me state for the record:

I know that it must be frustrating to have your public history of abuse and deceit discussed over and over again, however I remind you that you are the person who chose to generate money as someone who victims of abuse in wrestling should be expected to trust with sensitive disclosures. You applied for a job that affords you massive power to impact the lives of others. For this reason, so long as you remain in this position of incredible importance to the safety of our sport and the lives of others, your very public history as abusive and deceitful behaviour, along with the horrible behaviour you have demonstrated to marginalized groups within the wrestling community, will remain a live issue that will continue to be discussed as relevant to the issues at hand.

Ms. Schiavulli’s Emails

[63] Dr. Fowlie pleaded that on April 12, 2021 (Schiavulli #1), using her daughter’s email account, Ms. Schiavulli wrote to Ms. Thomas with copies to Mr. Spinney, Mr. Shamiya, Ms. Medwidsky, Ms. Walker, Ms. Thomson and Dr. Fowlie. Ms. Schiavulli wrote:

Incredibly and disgustingly, both you and Frank Fowlie cared little for confidentiality [author’s use of bold] and went out into the wrestling community to shame and humiliate Madison by telling members of her peer group about these horrible allegations. You recklessly went “fishing for evidence” that could possibly substantiate the allegations made against Madison…allegations that were clearly reprisals.

[64] Later in the email, Ms. Schiavulli referred to Dr. Fowlie as a misogynist, writing, “[t]he misogynist Frank Fowlie will not receive the same opportunity.”

[65] On April 14, 2021 (Schiavulli #2), Ms. Schiavulli wrote to Ms. Medwidsky, with copies to Ms. Parks, Mr. Spinney, Ms. Thomas, Mr. Dorgan, Mr. Shamiya, Ms. Thomson, Ms. Walker and Dr. Fowlie. Ms. Schiavulli wrote that Ms. Parks was concerned that Dr. Fowlie may not accurately and honestly provide her with information she was told she would receive. Ms. Schiavulli said that Ms. Parks would be suing Mr. Zinger, Mr. Ó’Ceallacháin, Dr. Fowlie and possibly others. Ms. Schiavulli said that Ms. Parks would be suing Dr. Fowlie because he had recklessly participated in Mr. Ó’Ceallacháin’s reprisals, and that Ms. Parks takes the position that Dr. Fowlie knew or ought to have known that the negligent (or grossly negligent) manner in which he responded to Mr. Ó’Ceallacháin’s reprisal would harm Madison. Ms. Schiavulli said Ms. Parks was told that she would be informed of the outcome of the investigation into Mr. Ó’Ceallacháin’s complaint and the rationale for the conclusion. Ms. Schiavulli said that because of Dr. Fowlie’s track record, they were afraid that he would not provide truthful information. Ms. Schiavulli attached a link to the Globe and Mail article describing Dr. Fowlie’s effort to require the Canadian Transportation Agency to remove his name from its decision in Dr. Fowlie’s complaint against Air Canada after he was refused passage on a flight because of his behaviour. In her email, Ms. Schiavulli noted that the article said that the CTA had not only ruled against Dr. Fowlie but had concluded that his behaviour on the flight had been “abusive and offensive.” Ms. Schiavulli said that obviously the article provides insight “into Mr. Fowlie’s nasty character as a bully” but that it was what the article said about his honesty that was of concern to her and her daughter. Ms. Schiavulli noted that the article said that the tribunal had questioned Dr. Fowlie’s credibility and had described how he had changed his notes in order to help his position. Ms. Schiavulli wrote that; “we can all see that Frank Fowlie is a man who is: A. willing to be a bully when people don’t bend to his will; and B. willing to change documentary evidence if he believes it will help him. “

[66] On May 2, 2021 (Schiavulli #3), Ms. Schiavulli wrote to Dr. Fowlie, with copies to Ms. Medwidsky, Ms. Walker, Ms. Thomson, Mr. Shamiya, Mr. Spinney and Mr. Dorgan. She said; “I am sure you have already realized that you let your emotions get the better of you again. You will be sued for abhorrent behavior.”

[67] On August 3, 2021 (Schiavulli #4), Ms. Schiavulli wrote to Dr. Fowlie, with copies to Mr. Zinger, Ms. Medwidsky, Ms. Walker, Mr. Spinney and officials at the Ontario Amateur Wrestling Association. In her email, Ms. Schiavulli wrote that Dr. Fowlie and Mr. Zinger were “horribly abusive misogynists” who had abused Ms. Parks. Ms. Schiavulli described Dr. Fowlie as “a man who has a proven tribunal history of abusing people who you believe to be less powerful than you…and when you don’t get what you want you have been proven by the tribunal to engage in deceitful behaviour…and so you can take your weak attempts to intimidate people and save it for weaker prey.” Ms. Schiavulli also wrote; “And finally, I am not sure whether it is cognitive impairment or just another attempt to improperly engage withy (sic) Madison, but I ask that you pay attention to the details when you send future emails…my name is Mara Schiavulli and I have POA for Madison. You are not permitted to speak with Madison.”

[68] On August 4, 2021 (Schiavulli #5), Ms. Schiavulli wrote an email to Dr. Fowlie, Ms. Medwidsky, Mr. Shamiya, Ms. Thomson, moedorg@hotmail.com [I assume this to be Mr. Dorgan] and Mr. Spinney. Ms. Schiavulli wrote that she had five safety concerns about Dr. Fowlie. She said that he “has an established public history of abusing those who he believes are less powerful.” She said he “has an established public history of being deceitful in Tribunal setting in order to advance his nefarious agenda.” She said that Dr. Fowlie had been named in a lawsuit involving Ms. Town and that she had been told that this was because “after receiving detailed allegations against Mr. Ó’Ceallacháin, Dr. Fowlie’s advice was to “go for beer” with WCL leadership.” Ms. Schiavulli wrote that Dr. Fowlie “has no hesitation is (sic) shrugging off athlete’s allegations when the complaint is against WCL leadership (the same leadership who hires and pays Frank Fowlie), however when the complaint comes from WCL leadership against the athlete who makes complaints against Frank Fowlie’s paying customer he immediately applies a wild double standard. For example, Frank Fowlie immediately hired a lawyer to investigate the salacious and reprising allegations that were advanced by Ed Zinger and Lucas Ó’Ceallacháin—allegations in which no actual evidence was provided beyond rumours and gossip.” Ms. Schiavulli wrote that Dr. Fowlie sends her written communication that is “unprofessional overtly/unnecessarily argumentative.” She wrote; “Frank Fowlie holds himself out as an expert in conflict resolution and Management—please look carefully at all of his correspondence and you will see that he falls well short of an acceptable standard for a professional of his industry…but of course he does…he has an established tribunal history of abusing those who he perceives as less powerful.” Ms. Schiavullli wrote that Dr. Fowlie had violated Ms. Parks’ privacy multiple times. Ms. Schiavulli wrote that Dr. Fowlie had sent her an email in which he said that he was unsure about whom he was communicating with, but nonetheless went on to refer to confidential information about Ms. Parks. Ms. Schiavulli wrote that Dr. Fowlie also sent written communication to Ms. Parks’ peer group, in which he disclosed that Ms. Parks was being investigated for having an improper sexual relationship with her coach. Ms. Schaivulli then wrote that Dr. Fowlie “had demonstrated a decade’s long inability to emotionally regulate himself. His desire to dominate is so overwhelming that he will even violate the confidentiality of athletes to establish superiority. Fran Fowlie takes ‘pissing contest’ to such a level that according to the tribunal decision even the safety of an aircraft may have been jeopardized because of his inability to control himself after receiving meal service that fell short of his expectations.”

THE ISSUES

[69] The issues to be decided on this Motion are:

1. Under s. 137.1(3), have the Defendants shown that the proceeding arises from an expression made by the Defendants that relates to a matter of public interest?

2. Has Dr. Fowlie shown under s. 137.1(4)(a) that there are grounds to believe (i) the proceeding has substantial merit and (ii) the defendants have no valid defence?

3. If Dr. Fowlie has met his burden under the second issue, has he also shown, under s. 137.1(4)(b), that harm likely to be or have been suffered as a result of the defendants’ expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the interest in protecting the expression?

[70] If the Defendants do not satisfy me that Dr. Fowlie’s action arises from an expression that relates to a matter of public interest, I must dismiss their Motions. If the Defendants do satisfy me that the action arises from an expression that relates to a matter of public interest, I must dismiss Dr. Fowlie’s action if Dr. Fowlie does not meet his onus under either s. 137.1(4)(a) or s. 137.1(4)(b).

The Parties’ Positions

The Defendants’ Position

[71] The Defendants argue that the emails relied upon by Dr. Fowlie in his Statement of Claim relate to a matter of public interest, specifically, the safety and well-being of amateur wrestlers in Canada. The Defendants argue that if the role of CAO is occupied by the wrong person, WCL’s complaints and discipline process will be meaningless, because athletes and others will stay silent when they suffer abuse or maltreatment, rather than filing a complaint.

[72] The Defendants say that if any of their emails are found to be defamatory, they have strong defences, including fair comment.

[73] The Defendants say that Dr. Fowlie’s lawsuit is one of several retaliatory actions Dr. Fowlie has taken in response to their efforts to shine a light on his unsuitability as CAO.

[74] The main thrust of the Defendants’ argument is that Dr. Fowlie cannot show that any harm he has suffered as a result of the emails is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting their expression. The Defendants submit that Dr. Fowlie’s contact as WCL CAO was terminated, but that their emails were not the reason. They say that Dr. Fowlie has not suffered any employment-related harm because of their emails. They also say that Dr. Fowlie’s reputation was not unblemished before they wrote their emails, because of the incident on the Air Canada flight and the CTA’s findings in his complaint against the airline.

Dr. Fowlie’s Position

[75] Dr. Fowlie argues the Defendants’ Motions are without merit.

[76] Dr. Fowlie argues the content of the Defendants’ emails cannot be condoned on the basis that they were acting in the public interest. He argues the Defendants’ conduct was an assault on legal processes designed to efficiently resolve disputes.

[77] Dr. Fowlie submits that Mr. Spinney and Ms. Schiavulli were unhappy with Dr. Fowlie’s handling of the allegation that Mr. Spinney and Ms. Parks were having an inappropriate relationship. Dr. Fowlie submits that, rather than cooperating with the investigation, Mr. Spinney and Ms. Schiavulli, joined by Mr. Shamiya, sought to undermine him. Dr. Fowlie says that he handled the complaint appropriately and made judgment calls he was entitled to make.

[78] Dr. Fowlie argues that the Defendants’ statements about him are personal attacks, motivated by malice. Dr. Fowlie says his personal reputation has been harmed and he has suffered prolonged and on-going psychological damage as a result.

[79] Dr. Fowlie submits that the Defendants’ Motions are frivolous and should be dismissed with full indemnity costs.

Under s. 137.1(3) of the Courts of Justice Act, have the Defendants shown that the proceeding arises from an expression made by the Defendants that relates to a matter of public interest?

[80] “Expression” is broadly defined in s. 137.1(2) of the Courts of Justice Act as “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.”

[81] Dr. Fowlie’s action is for defamatory comments made by the Defendants in emails written from February 2021 to December 2021. The Defendants do not deny that they wrote the emails. I am satisfied that the action arises from an “expression” made by the Defendants.

[82] To meet their burden under s. 137.1(3) to show that their expression relates to a matter of public interest, the Defendants must show that “some segment of the community would have a genuine interest in receiving information on the subject.” (Pointes Protection, at para. 27.) The statutory language used in s. 137.1(3) confirms that “public interest” ought to be given a broad interpretation. (Pointes Protection, at para. 28.)

[83] In Buttar, at 42, the Court of Appeal summarized several guiding principles in respect of s. 137.1(3) identified by the Supreme Court of Canada in Pointes Protection and by the Court of Appeal in Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730:

The court should adopt a “broad and liberal” and “generous and expansive” approach to whether the expression relates to a matter of public interest: Pointes Protection, at paras. 26, 30. The burden on the moving party is not onerous: Pointes Protection, at para. 28.

The interpretation of “public interest” must be informed by the purpose of the anti-SLAPP legislation, which is to safeguard the fundamental value that is public participation in democracy, and there is necessarily a normative aspect to what is “genuinely” a matter of public interest: Pointes Protection, at para. 30; Sokoloff, at para. 18.

Ultimately the inquiry is a contextual one that is fundamentally asking what the expression is really about (emphasis in original): Pointes Protection, at para. 30.

In considering the entire context of the expression, “it is not legally relevant whether the expression is desirable or deleterious, valuable or vexatious, or whether it helps or hampers the public interest – there is no qualitative assessment of the expression at this stage”: Pointes Protection, at para. 28. The defendant’s “motive, merit and manner are irrelevant in determining whether [an] expression relates to a matter of public interest”: Pointes, at para. 65; Sokoloff, at para. 25.

[84] Dr. Fowlie argues that the Defendants’ emails are in respect of a purely private. He argues that the Defendants, for their own reasons, wanted to force him out of the CAO position at WCL.

[85] All of the Defendants’ emails identified in Dr. Fowlie’s Statement of Claim relate to Dr. Fowlie’s decision-making and conduct as WCL CAO, whether Dr. Fowlie was suitable for the role, or both. In their emails, the Defendants expressed concern about Dr. Fowlie’s treatment of Ms. Parks, which they considered to have been insensitive, particularly when, given the nature of the complaint that had been made, Ms. Parks could have been a victim of sexual assault. The Defendants expressed concern about what they characterized as a breach of confidentiality in relation to the allegation of an undisclosed relationship between Mr. Spinney and Ms. Parks. The Defendants expressed concern about the standard Dr. Fowlie applied when screening complaints. They said that Dr. Fowlie ordered investigations of complaints made by a WCL official (Mr. Ó’Ceallacháin) which they believed had red flags, while, at the same time, suggesting that safety concerns raised by a female athlete relating to that same WCL official could best be addressed over a beer, rather than through the WCL complaint process. In their emails, the Defendants referred to the findings of the Canadian Transportation Agency in Dr. Fowlie’s complaint against Air Canada and questioned whether his reputation would inspire confidence in athletes and others who were weighing whether to file complaints.

[86] On cross-examination, Dr. Fowlie agreed that the Defendants’ emails were directly related to his role as CAO.

[87] WCL is a largely publicly funded organization that governs an amateur sport which is also an Olympic sport. I am satisfied that the CAO role is crucial to the operation and integrity of WCL’s complaints and discipline process. As I noted previously, the CAO decides whether complaints will be investigated and once they have been investigated, whether they will proceed to a hearing. Complainants, be they athletes, coaches or WCL officials, must have confidence in the CAO for the system to operate. If potential complainants do not have faith in the complaints system, they may not file complaints, and unfairness and abuse may be permitted to continue.

[88] On cross-examination, Dr. Fowlie agreed that it is important for people who join a sports organization to be safe and that a safe environment is also important for family members and supporters of athletes. Dr. Fowlie agreed that because sports organizations are in part publicly funded, the public at large has an interest in ensuring athletes operate in a safe environment. He added that this is not only because of public funding but is also an issue associated with Canada’s national identity.

[89] Expressions made in the context of an investigation of alleged sexual misconduct may satisfy the public interest component of s. 137.1, particularly where a public institution is involved, and safety concerns are raised. (Saifi-Naini v. Rubin Thomlinson LLP, 2023 ONCA 86, at para. 21.) Expressions relating to the treatment of athletes may satisfy the public interest component of the analysis. (Gorham v. Behm, 2020 ONSC 6469, at para. 14, per Phillips J., hearing a s. 137.1 motion that arose in a Small Claims Court action.)

[90] Given the inherent power imbalance between athletes and coaches, and between both athletes and coaches on the one hand and those responsible for team selection and funding decisions on the other, a complaints and discipline process in which participants can have faith is integral to any sports organization. In my view, the history of abuse in the Canadian wrestling community that was described in the materials before me, and which led to the 2018 Bennett Report, underscores both the essential nature of the independent complaints and discipline process at WCL and that the individuals at the controls of the process must be beyond reproach.

[91] I am satisfied that the Canadian wrestling community and participants and others involved in other amateur sports would have a genuine interest in receiving information about the subject matter of the defendants’ emails. I am also satisfied that, to a certain extent, members of the Canadian public as a whole would share this interest. For example, parents of children who participate in any competitive sport would have an interest in knowing what safeguards are in place to guard against harassment and maltreatment. Amateur athletes who do well in international competitions, in particular the Olympics, frequently become public figures; both their achievements and their struggles are of significant interest to the public.

[92] The Defendants have met their burden under s. 137.1(3) of showing that Dr. Fowlie’s action arises from an expression of the defendants relating to a matter of public interest.

Under s. 137.1(4)(a), has Dr. Fowlie shown (i) there are grounds to believe the proceeding has substantial merit and (ii) the moving parties have no valid defence?

Has Dr. Fowlie shown there are grounds to believe the proceeding has substantial merit?

[93] The Supreme Court of Canada has concluded that for a proceeding “to have ‘substantial merit’, it must have a real prospect of success—in other words, a prospect of success that, while not amounting to a demonstrated likelihood of success, tends to weigh more in favour of the plaintiff.” (Pointes Protection, at para. 49.)

[94] As I noted in Footnote 1, in his Statement of Claim, Dr. Fowlie seeks damages for defamation and for publicity for placing the Plaintiff in a false light and referred to the tort of internet harassment in two paragraphs. It appears that Dr. Fowlie has abandoned the claims other than defamation. However, as there is nothing in the record to positively confirm that these claims have been abandoned, I will refer to them briefly in these reasons.

DEFAMATION

[95] To show that a communication is defamatory, a plaintiff must show that the communication was published to at least one other person, referred to the plaintiff, and would tend to lower the plaintiff’s reputation in the eyes of a reasonable person. (Bent v. Platnick, 2020 SCC 23, at para. 92.)

[96] The emails of Mr. Spinney, Mr. Shamiya and Ms. Schiavulli reproduced in Dr. Fowlie’s Statement of Claim and summarized in these reasons were all published to at least one other person, and all referred to Dr. Fowlie.

[97] I consider below whether they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person.

Mr. Spinney’s Emails

[98] Several of Mr. Spinney’s emails are not defamatory. For example, Dr. Fowlie pleads that in Spinney #1, the words used by Mr. Spinney state that Dr. Fowlie is an abusive man who defames, demeans, and harasses athletes. I am satisfied that Mr. Spinney is not referring to Dr. Fowlie in this email. Spinney #4 is not defamatory and Dr. Fowlie does not plead that it is; he pleads that it amounts to harassment. In Spinney #8, Mr. Spinney wrote that Dr. Fowlie “appeared to demonstrate a historic propensity to irrationally digging your heels in even when you clearly are in the wrong.” Mr. Spinney then added that, to be clear, he had “no idea as to whether or not this is true, however, there are so many articles on the internet describing your failed legal actions…” It appears to me that Mr. Spinney chose his words carefully when he wrote this email, and I am not of the view that his words would lower Dr. Fowlie’s reputation in the eyes of a reasonable person.

[99] Some of the words Dr. Fowlie has identified in other emails written by Mr. Spinney were not so benign. For example:

• In Spinney #3, Mr. Spinney said that Dr. Fowlie “has a disturbing tribunal record of abusing those who he perceives as less powerful than them.”

• In Spinney #5, Mr. Spinney said that Dr. Fowlie behaved “like a classic former cop thug” and that he had “certainly lived up to [his] billing as a misogynist who is willing to demean and shame those who do not sufficiently bend to your will.”

• In Spinney #9, Mr. Spinney said that Dr. Fowlie demonstrated “outrageous bias in the sport of wrestling”, “engaged in reprising behaviour against multiple coaches and athletes” and that his behaviour at WCL was “consistent with his well-established public incidents of abuse and humiliation.”

• In Spinney # 11, Mr. Spinney said that he recognized how angry Dr. Fowlie must be “to have his abhorrent, dangerous, and tortious conduct exposed.”

• In Spinney #12, Mr. Spinney said that Dr. Fowlie demonstrated an “incredible double standard” in the way he responded to different allegations, that Dr. Fowlie had retaliated against coaches when they raised concerns about how victims of sexual harassment and abuse were treated, that Dr. Fowlie had proven that he was willing to set aside professional expectations when it suits him, that Dr. Fowlie has “a well-established public history of engaging in deceitful and manipulative conduct when advancing arguments in tribunal” and that Dr. Fowlie had approached the police about Mr. Spinney and Mr. Shamiya in “a desperate attempt to exact revenge with a frivolous and vexatious complaint”.

• In Spinney #13, Mr. Spinney said that Dr. Fowlie had “engaged in abuse/maltreatment”, that Dr. Fowlie’s treatment of a young Indigenous woman who suffered abuse that would never have taken place is she were a heterosexual woman, was “abhorrent and inexcusable,” that “Dr. Fowlie behaved this way because it was in his financial best interest to do so”, that Dr. Fowlie “weaponized a criminal complaint to the RCMP in order to try and silence those who were acting as whistleblowers and exposing his role in abuse/maltreatment in the sport of wrestling” and that men in positions of WCL leadership, like Dr. Fowlie “have been able to engage in all manner of abuse and maltreatment in order to silence victims, including Indigenous victims of sexual abuse.”

• In Spinney #14, Mr. Spinney said that he “would not have predicted the extreme lengths that this latest WCL Complaints Officer would go to to try and silence me and my witnesses”.

[100] For the purposes of this Motion, I find that some of the words in these emails would tend to lower Dr. Fowlie’s reputation in the eyes of a reasonable person.

Mr. Shamiya’s Emails

[101] For the purposes of this Motion, I find that some of the words in the emails written by Mr. Shamiya would also tend to lower Dr. Fowlie’s reputation in the eyes of a reasonable person. For example:

• In Shamiya #1, Mr. Shamiya said that Dr. Fowlie was selective about what he heard, that Dr. Fowlie declined to get the other side of the story and that Dr. Fowlie had “already been found to be lacking in credibility”. Mr. Shamiya said that he had “many times witnessed white men attempting to use their positions of power and privilege to belittle others exactly as you are doing now. You are a bully plain and simple.” Mr. Shamiya said that as a result of Dr. Fowlie’s “sneaky behaviour” his credibility was called into question.

• In Shamiya #2, Mr. Shamiya wrote “I am not surprised that a man who has already been found to be lacking credibility is so obviously irritated by transparency.”

• In the video, Shamiya #3, Mr. Shamiya said that Dr. Fowlie “engaged in horrible behaviour in the past few months” and engaged in schemes “to silence victims of abuse, including sexual violence.”

• In Shamiya #4, Mr. Shamiya wrote that Dr. Fowlie’s “very public record of abuse and dishonesty should have been enough to disqualify him for the job…” Mr. Shamiya also said that Dr. Fowlie applied a “completely different standard” to different complaints.

• In Shamiya #5, Mr. Shamiya said that lawsuits against Dr. Fowlie “will address his horrible behaviour as WCL Complaints Officer (not unexpected given his established tribunal history of abuse and deceit)…”

• In Shamiya #6, Mr. Shamiya said that he believed that Dr. Fowlie was “a dangerous and abusive man who should not be involved in our sport.”

• In Shamiya #7, Mr. Shamiya wrote that Dr. Fowlie had “already been proven by a tribunal to be abusive and deceitful”, that he did not afford basic levels of respect to a young Muslim Palestinian”, that he used his discretionary power to apply a “grotesque double standard”, that he was “displaying transparent racism” and that Dr. Fowlie makes “fake extortion allegations”.

• In Shamiya #8, Mr. Shamiya said that Dr. Fowlie liked to play “nefarious games”, that Dr. Fowlie had an “abusive past”, that Dr. Fowlie’s behaviour was “a textbook example of how WCL has been able to help silence victims of abuse for so many years”, that Dr. Fowlie had “an established public history of falsely claiming” that he had been mistreated, that Dr. Fowlie was behaving as a “hired gun” for WCL, that Mr. Shamiya was willing to consider the possibility that Dr. Fowlie was not being sinister but rather “possibly genuinely operate from a belief system suffering from grand delusion.” Mr. Shamiya said it must be frustrating for Dr. Fowlie to have his “public history of abuse and deceit discussed over and over again” but that Dr. Fowlie was “the person who chose to generate money as someone who victims of abuse in wrestling should be expected to trust with sensitive disclosures.” Mr. Shamiya also said, “your very public history as abusive and deceitful behaviour (sic), along with the horrible behaviour you have demonstrated to marginalized groups within the wrestling community, will remain a live issue that will continue to be discussed as relevant to the issues at hand.”

Ms. Schiavulli’s Emails

[102] For the purposes of this Motion, I also find that some of the words in the emails written by Ms. Schiavulli would tend to lower Dr. Fowlie’s reputation in the eyes of a reasonable person. For example:

• In Schiavulli #1, Ms. Schiavulli referred to “the misogynist Frank Fowlie.”

• In Schiavulli #2, Ms. Schiavulli said that an article in the Globe & Mail provided insight “into Mr. Fowlie’s nasty character as a bully”. Ms. Schiavulli also said: “we can all see that Frank Fowlie is a man who is: A. willing to be a bully when people don’t bend to his will; and B. willing to change documentary evidence if he believes it will help him.”

• In Schiavulli #3, said that Dr. Fowlie had let his emotions get the better of him again and that he would be sued for abhorrent behaviour.

• In Schiavulli #4, Ms. Schiavulli said that Dr. Fowlie and Mr. Zinger were “horribly abusive misogynists” who had abused Ms. Parks. Ms. Schiavulli said that Dr. Fowlie was “a man who has a proven tribunal history of abusing people who you believe to be less powerful than you…and when you don’t get what you want you have been proven by the tribunal to engage in deceitful behaviour…”

• In Schiavulli #5, Ms. Schiavulli said that Dr. Fowlie “has an established public history of abusing those who he believes are less powerful.” She said he “has an established public history of being deceitful in Tribunal setting in order to advance his nefarious agenda.” She said that Dr. Fowlie applied a “wild double standard” to allegations from different people. Ms. Schiavulli said that Dr. Fowlie “had demonstrated a decade’s long inability to emotionally regulate himself” and that “[h]is desire to dominate is so overwhelming that he will even violate the confidentiality of athletes to establish superiority.”

[103] Having found, for the purposes of this motion, that all three Defendants published communications to at least one other person that referred to Dr. Fowlie and included words that would tend to lower Dr. Fowlie’s reputation in the eyes of a reasonable person, and as general damages are presumed in a defamation action, I find that Dr. Fowlie has shown there are grounds to believe that his claim for defamation against each of the defendants has a real prospect of success and, as such, has substantial merit.

INTERNET HARASSMENT

[104] If my understanding that Dr. Fowlie has abandoned his claim for internet harassment is incorrect, I find that it is without merit.

[105] This Court has recognized a narrow tort of internet harassment, reserved for “the most serious and persistent of harassing conduct that rises to a level where the law should respond to it.” (Caplan v. Atas, 2021 ONSC 670, at para. 174.)

[106] Dr. Fowlie pleads that the Defendants “maliciously and recklessly engaged in communications so outrageous in character, duration and extreme in degree, so as to go beyond all possible bounds of decency and tolerance, with the intent to cause fear, anxiety and emotional upset, and impugn the dignity of the Plaintiff”. Dr. Fowlie complains of a total of 14 emails from Mr. Spinney, eight from Mr. Shamiya and five from Ms. Schiavulli over a period of 11 months. For the purposes of this Motion, I find that the evidence before me does not support the pleading and neither the number nor the content of the emails would qualify as serious and persistent harassing conduct.

[107] Further, as I noted previously, Dr. Fowlie did not seek damages for the tort of internet harassment in his Statement of Claim.

PUBLICITY PLACING A PERSON IN A FALSE LIGHT

[108] If my understanding that Dr. Fowlie has abandoned his claim for the tort of publicity placing a person in a false light is incorrect, I find that it is without merit.

[109] This tort was recognized by Kristjanson J. in Yenovkian v. Gulian, 2019 ONSC 7279, who noted that, like intrusion upon a person’s seclusion and public disclosure of embarrassing private facts, publicity which places the plaintiff in a false light in the public eye is a cause of action for invasion of privacy.

[110] Dr. Fowlie’s action is not about invasion of privacy. It is about communications that were sent to him and others concerning his role as an officer of a publicly-funded national organization.

[111] Further, the tort requires “publicity”, meaning that it must involve a communication “that reaches, or is sure to reach the public.” “Publicity” is a high threshold than publication. Information communicated to a single individual, or a small group of people will not suffice. (Duncan, F., “Illuminating False Light: Assessing the Case for the False Light Tort in Canada” (2020) 43:2 Dal. L.J. 605 at pp. 613-614.)

[112] The Defendants’ emails were sent to a relatively small group of people, including participants in the wrestling community, the wider sports community and some politicians. The publication of these emails did not rise to the level of “publicity.”

Has Dr. Fowlie shown there are grounds to believe the moving parties have no valid defence?

[113] Under s. 137.1(4)(a)(ii), the initial onus is on the moving parties to “put in play” their defences.

[114] It is then the onus of the respondent to demonstrate that there is reason to believe that none of the defences raised by the moving parties will succeed. (Buttar, at para. 59.)

[115] There must be “a basis in the record and the law — taking into account the stage of litigation at which a s. 137.1 motion is brought — for finding that the underlying proceeding has substantial merit and that there is no valid defence.” (Pointes Protection, at para. 39.)

[116] Mr. Spinney and Ms. Schiavulli rely on the defences of qualified privilege, fair comment and justification. Mr. Shamiya relies on the defences of qualified privilege and fair comment.

[117] These defences were pleaded by each defendant in their Statement of Defence, on an email-by-email basis. The three Defendants pleaded the basis for their claims of qualified privilege. Mr. Spinney and Ms. Schiavulli pleaded the facts they relied upon in support of their defence of fair comment; Mr. Shamiya pleaded that he relied on the full text and context of his emails, including any related chain of correspondence.

[118] The legal and factual components of the defences were further set out in the Reply Factums filed by Mr. Spinney and Ms. Schiavulli. Mr. Shamiya, who was self-represented at the hearing of the Motion, said that he was relying on the arguments of the other Defendants, which I have taken to include their arguments about the defences to Dr. Fowlie’s action.

[119] Once a defence has been “put in play”, the question is whether the record supports or refutes the particular defence. Again, the standard of whether there is reason to believe the moving parties will have no valid defence. To satisfy this burden, the responding party must show that the defences raised “are not legally tenable or supported by evidence that is reasonably capable of belief such that they can be said to have no real prospect of success”. (Buttar, at para. 63, citing Hansman, at para. 94 and Pointes Protection, at para. 59.)

[120] If I find that the defences could realistically fail, Dr. Fowlie will have met his onus on this part of the test. (Pointes Protection, at para. 60.)

[121] I must keep in mind that the burden on Dr. Fowlie is not high. There must be a basis in the record and the law—taking into account the stage of the litigation—for finding that there is no valid defence. This means that any basis in the record and the law will be sufficient. By definition, “a basis” will exist if there is a single basis in the record and the law to support the absence of a valid defence. That basis must, of course, be legally tenable and reasonably capable of belief. (Bent, at para. 88.)

[122] Dr. Fowlie argued in his Factum that each of the defences relied upon by the Defendants was flawed and that “[t]he flaw across these defences is that the defendants intended to injure Dr. Fowlie. Malice defeats a defence of qualified privilege and fair comment.” Dr. Fowlie also argued that qualified privilege was also defeated because the limits of the duty to disclose information about Dr. Fowlie were exceeded.

QUALIFIED PRIVILEGE

[123] As the Court of Appeal noted in Thatcher-Craig v. Clearview, 2023 ONCA 96, at para. 55, the basic principles that constitute the defence of qualified privilege were recently restated by the Supreme Court of Canada in Bent v. Platnick, 2020 SCC 23, at paras. 121 – 122:

[124] An occasion of qualified privilege exists if a person making a communication has “an interest or duty, legal, social, moral or personal, to publish the information in issue to the person to whom it is published” and the recipient has “a corresponding interest or duty to receive it”. Importantly, “[q]ualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself”. Where the occasion is shown to be privileged, “the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff”. However, the privilege is qualified in the sense that it can be defeated. This can occur particularly in two situations: where the dominant motive behind the words was malice, such as where the speaker was reckless as to the truth of the words spoken; or where the scope of the occasion of privilege was exceeded.

[125] For this reason, a precise characterization of the “occasion” is essential, as it becomes impressed with the limited, qualified privilege, which in turn becomes the benchmark against which to measure whether the occasion was exceeded or abused. [Citations omitted.]

[126] To assess the potential viability of the defence in this case, the court must: (1) Determine whether the defendants had “an interest or duty, legal, social, moral or personal” to send their emails to the recipients, and that interest or duty was to a person or constituency that had a corresponding duty or interest to receive it; (2) If so, provide a precise characterization of the occasion of qualified privilege; and (3) Determine whether the privilege was defeated by malice or because the scope of the occasion was exceeded or abused. (Thatcher-Craig, at para. 56.)

[127] The privilege, based on the reciprocal duty or interest of communicating and receiving information, is ground in the social utility of protecting particular communicative occasions from civil liability. The reciprocal duty or interest should not be viewed technically or narrowly. (Thatcher-Craig, at para. 70, citations omitted.)

[128] I am satisfied that Mr. Spinney and Mr. Shamiya, as wrestling coaches, and Ms. Schiavulli, as the mother of a wrestler, all had an interest or duty to send the emails Dr. Fowlie claims are defamatory. The Defendants all had a genuine interest in the safety and well-being of Canadian wrestlers and in the integrity of the WCL complaint and discipline process. The 2018 Bennett Report had revealed systemic abuse in the Canadian wrestling community. The CAO role was central to WCL’s new complaint and discipline process. The Defendants had concerns that Dr. Fowlie was not fulfilling his responsibilities as CAO in an impartial or appropriate manner or that he was not suitable for the position.

[129] In my view, the “occasion” of qualified privilege in this case was the following: that issues had come to light giving rise to concern that a person who occupied a powerful and influential position within a publicly-funded organization dedicated to oversight and administration of a Canadian amateur sport was inappropriate for the position, a position which was critical to the organization’s complaint and discipline system, and therefore also to athlete safety and well-being.

[130] Many of the Defendants’ emails were also sent in the context of a complaints and discipline process and, as such, would also be protected by a qualified privilege. Most of Mr. Spinney’s emails were in relation to Mr. Ó’Ceallacháin’s two complaints against Mr. Spinney, a later complaint by Dr. Fowlie against Mr. Spinney and a complaint Mr. Spinney made about Dr. Fowlie to the SDRCC. Ms. Schiavulli’s emails were in respect of Mr. Ó’Ceallacháin’s allegation that Mr. Spinney and Ms. Parks were having a sexual relationship.

[131] The email Mr. Spinney sent to the RCMP related to the investigation of a criminal complainant Dr. Fowlie made about Mr. Spinney to the RCMP, which would also be protected by a qualified privilege.

[132] I have listed the recipients of each email earlier in these reasons. Mr. Spinney sent his emails to recipients who included Dr. Fowlie, investigators appointed by Dr. Fowlie, the Director General, Sport, for Heritage Canada, the CEO of WCL, a wrestling coach at York University, counsel to WCL, Mr. Shamiya, a member of an organization called VOWL, or Victims of Wrestling Leadership, the CEO of Own the Podium, the CEO of the SDRCC, a sports arbitrator, Mr. Ó’Ceallacháin, Dr. Fowlie’s replacement as WCL CAO and an RCMP constable. Mr. Shamiya’s emails were sent to some of the same people as well as the Minister of Heritage and Mr. Spinney. Mr. Shamiya sent his YouTube video (Shamiya #3) to the Prime Minister. Ms. Schiavulli sent her emails to many of the same people who received Mr. Spinney’s and Mr. Shamiya’s emails. In addition, Ms. Schiavulli sent an email to a wrestling referee and to officials with the Ontario Amateur Wrestling Association.

[133] Bearing in mind that the reciprocal duty or interest should not be viewed technically or narrowly, and that WCL is a national publicly-funded organization, I am satisfied that the recipients of the Defendants’ emails had a reciprocal duty or interest to receive the Defendants’ emails.

[134] Dr. Fowlie appears to concede that the Defendants may have had an interest or duty to communicate their concerns about him, but argues that, in doing so, they violated the WCL confidentiality policy. In his Factum, Dr. Fowlie wrote; “The Court must then balance whether the defendant’s purported moral or social duty to communicate their concerns to ministers of the Crown-in-right-of-Canada and members of the wrestling community trumps their legal duties, as these are defined by Wrestling Canada Lutte.” Dr. Fowlie has not satisfied me that the WCL confidentiality policy would have had any bearing on their right to send their emails, which related not to the subject matter of complaints but to the administration of complaints.

[135] Dr. Fowlie argues that the defence of qualified privilege is defeated by malice; he argues that the Defendants intended to injure him. Dr. Fowlie relies on three statements by Mr. Shamiya and two by Mr. Spinney in support of his argument that the defendants have “declared malicious intent” against him. These statements are the following:

“I have no control if you leave Canadian sport, but I will do my best to have you leave the sport of wrestling.” (From Shamiya #2.)

“I wanted to let you know that if The Board of Directors is not willing to replace Frank Fowlie, I will be calling for an open discussion in the wrestling community regarding his role in wrestling.”

“I trust you will behave more professionally moving forward—if, in fact, your role with WCL remains intact, which at this point seems doubtful to me. Regardless, I will make it my goal to ensure that you will feel some lasting effects from your tenure at WCL.” (From Spinney #6.)

“For the past half year members of the wrestling community, including myself, have continued to make the Government of Canada and Canadian sport leaders aware about the inappropriate nature of having Frank Fowlie involved in any role meant for victims to disclose abuse.” [This paragraph was in the email of August 12, 2021, in para. 96 of Dr. Fowlie’s statement of claim and which I have identified as Spinney #9 but was not reproduced in the statement of claim.]

“[I]f Panel Cullen convicts me of a WCL Code of Conduct violation for speaking out about Frank Fowlie during his time as WCL Complaints Office, then it will be a badge of honour that I will wear proudly” (Email dated July 13, 2022, from Mr. Shamiya to Dr. Fowlie’s replacement as WCL CAO and lawyer Timothy Cullen.”)

[136] Malice has both subjective and objective aspects. It may be established by reckless disregard for, or indifference to, the truth, spite or ill-will, or any indirect or ulterior motive. (Buttar, at para. 72, with citations removed.)

[137] There was no evidence before me that any of the Defendants had had any relationship with or even knew Dr. Fowlie before Dr. Fowlie was appointed CAO of WCL.

[138] There was, however, some evidence in the record that Mr. Spinney and Mr. Shamiya had come to bear ill-will against Dr. Fowlie:

• Mr. Spinney was obviously not pleased with how Dr. Fowlie was handling the complaints Mr. Ó’Ceallacháin had made against him; one of these complaints had been investigated and dismissed previously; Dr. Fowlie expanded the scope of the other complaint and encouraged another person, Mr. Zinger, to file his own complaint. Mr. Spinney’s statement in Spinney #6, above, that he would ensure that Dr. Fowlie “will feel some lasting effects” from his tenure at WCL could be interpreted as a threat to seek vengeance against Dr. Fowlie.

• Dr. Fowlie’s uncontradicted evidence is that “Mr. Shamiya threatened to bring Palestinian friends to protest my employment by the Immigration and Refugee Board of Canada.”

[139] A determination that a defence “could go either way” in the sense that a reasonable trier could accept it or reject it, is a finding that a reasonable trier could reject the defence. (Bondfield Construction Company Limited v. The Globe and Mail Inc., 2019 ONCA 166, at para. 15.) Although the bar for proving malice is high, and malice must be the dominant motive behind the words, I am of the view that, because there is some evidence in the record that could support a finding of malice, the defence of qualified privilege is one that could go either way for Mr. Spinney and Mr. Shamiya. Dr. Fowlie has therefore satisfied me that there are grounds to believe that their defence of qualified privilege could fail.

[140] I find no evidence in the record of malice on the part of Ms. Schiavulli.

[141] In making this finding, I have considered and rejected Dr. Fowlie’s allegation that the Defendants conspired to cause him harm. Although some of the Defendants’ emails were copied to other Defendants, I did not consider this to amount evidence of reckless disregard for, or indifference to, the truth, spite or ill-will, any indirect or ulterior motive or any other indicator of malice.

[142] Dr. Fowlie has not satisfied me that there are grounds to believe that Ms. Schiavulli’s defence of qualified privilege would fail.

FAIR COMMENT

[143] The constituent elements of the defence of fair comment were set out in WIC Radio Ltd. v. Simpson, 2008 SCC 40, at para. 28:

(a) the comment must be on a matter of public interest;

(b) the comment must be based on fact;

(c) the comment, though it can include inferences of fact, must be recognizable as comment;

(d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?

(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.

[144] Dr. Fowlie did not suggest that requirements (a), (c) or (d), above, do not apply to the Defendants’ emails. Dr. Fowlie argues that the Defendants’ comments are not based on fact and were motivated by malice.

[145] Dr. Fowlie bears the onus of satisfying the Court that there are grounds to believe that the Defendants cannot establish one or more elements of the defence and thus the defence has no real prospect of success. (Hansman v. Neufeld, 2023 SCC 14, at para. 97.)

[146] In their Statements of Defence, where Mr. Spinney and Ms. Schiavulli rely on the defence of fair comment, they pleaded the facts on which the comment was based. In his statement of defence, Mr. Shamiya pleaded that his emails reflected his comments and opinions and were rooted in facts that are substantially true. Mr. Spinney and Ms. Schiavulli elaborated on the factual foundation for their comments in their factums.[^8]

[147] The factual foundation for a comment need not support the comment in the sense of confirming its truth, and the comment need not be a reasonable or proportionate response. (Hansman, at para. 100.) The comment must simply “relate to the facts on which it is based” such that the facts provided a “sufficient launching pad” for the comment. (Hansman, at para. 100-101.)

[148] In his oral submissions, Dr. Fowlie argued that many of the comments made by the Defendants are “completely unsupported by any evidence.” Dr. Fowlie did not, however, address the factual foundations for the comments that were pleaded by Mr. Spinney and Ms. Schiavulli or explain how, in his view, the facts pleaded do not support the comments.

[149] Dr. Fowlie argued that there were no facts to support of Mr. Shamiya’s suggestion that Dr. Fowlie was a racist.

[150] In Shamiya #7, Mr. Shamiya wrote the following:

I note that you use your discretionary power to apply a grotesque double standard when you were provided allegations of abuse to a Queer BIPOC athlete against a Caucasian man. In that case, you recommended “going for a beer”. But when 2 Caucasian men wanted to make a complaint against a BIPOC coach after he spoke against the abuse of a BIPOC athlete you hired 3 lawyers and police officer (sic) to go after that BIPOC man. You, sir, are displaying transparent racism.

[151] For the purposes of this Motion, I find that Mr. Shamiya’s statement in Shamiya #7 that Dr. Fowlie was “displaying transparent racism” was an opinion or comment, that the factual foundation for the opinion or comment is found in the same email and that the factual foundation in the email provides a “sufficient launching pad” for the opinion or comment.

[152] Dr. Fowlie has failed to identify comments made by the defendants that were not based on fact.

[153] My conclusions with respect to malice in relation to the qualified privilege defence apply equally here. It is possible that the fair comment defence of Mr. Spinney and Mr. Shamiya could be defeated by malice. There is no evidence of malice on the part of Ms. Schiavulli.

[154] Dr. Fowlie has therefore satisfied me that there are grounds to believe that Mr. Spinney’s and Mr. Shamiya’s defence of qualified privilege could fail but has not satisfied me that there are grounds to believe that Ms. Schiavulli’s defence of qualified privilege would fail.

JUSTIFICATION

[155] Mr. Spinney and Ms. Schiavulli both pleaded that, to the extent that the words complained of in their emails are statements of fact, they are substantially true. In support of this pleading, in respect of each of their emails, they pleaded that they relied on the facts they had pleaded in support of their fair comment defence and other facts in their Statements of Defence. Mr. Spinney provided a detailed summary of the factual basis for his comments about Dr. Fowlie in his Reply Factum.

[156] The justification defence applies to some but not all of the words Mr. Spinney’s and Ms. Schiavulli’s emails, as not all of the words complained of are statements of fact.

[157] Mr. Shamiya did not plead a justification defence.

[158] Dr. Fowlie bears the onus of showing that there are grounds to believe that Mr. Spinney and Ms. Schiavulli do not have a valid defence of justification. However, in his Factum, Dr. Fowlie suggested that the burden was on the Defendants and submitted that the Defendants had failed to adduce evidence that supports their position that the statements they made were true.

[159] Dr. Fowlie did not address, in his written or oral argument, the facts Mr. Spinney and Ms. Schiavulli rely on in support of their justification defence.

[160] As Mr. Spinney’s counsel observed, Dr. Fowlie has also admitted the truth of many of the facts Mr. Spinney and Ms. Schiavulli rely on, and other facts are supported in the record. For example, Dr. Fowlie has admitted that he distributed correspondence that identified Ms. Parks at that outset of the investigation into the allegation that Mr. Spinney and Ms. Parks were in a relationship. He also admitted that he complained about the Defendants to the RCMP. The decision of the CTA is evidence of the findings it made about Dr. Fowlie in his complaint against Air Canada. In an affidavit, Mr. Dorgan confirmed that, after a lengthy conversation with Dr. Fowlie about Ms. Town’s concerns about Mr. Ó’Ceallacháin, Dr. Fowlie suggested that Mr. Dorgan should “go have a beer” with WCL’s president instead of having Ms. Town file a complaint.

[161] Dr. Fowlie has not shown that there is reason to believe that the defence of justification raised by Mr. Spinney and Ms. Schiavulli will not succeed.

CONCLUSION WITH RESPECT TO WHETHER DR. FOWLIE HAS SHOWN THERE ARE GROUNDS TO BELIEVE THE MOVING PARTIES HAVE NO VALID DEFENCE

[162] In conclusion, I find that, Dr. Fowlie has shown there are grounds to believe that Mr. Spinney and has no defence of qualified privilege or fair comment but that Dr. Fowlie has failed to show that Mr. Spinney has no defence of justification in respect of the words in his emails to which that defence applies.

[163] I find that Dr. Fowlie has shown there are grounds to believe that Mr. Shamiya has no valid defence to Dr. Fowlie’s action.

[164] I find that Dr. Fowlie has failed to show there are grounds to believe that Ms. Schiavulli has no valid defences.

Under s. 137.1, has Dr. Fowlie shown that harm likely to be or to have been suffered as a result of the Defendants’ expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the interest in protecting the expression?

[165] Dr. Fowlie has shown that there are grounds to believe that his proceeding has substantial merit. Dr. Fowlie has also shown there are grounds to believe that Mr. Spinney has only a partial defence and that Mr. Shamiya has no defence.

[166] When a plaintiff shows the proceeding has substantial merit and the defendant has no valid defence, “it remains vulnerable to summary dismissal as a result of the public interest weighing exercise . . ., which provides courts with a robust backstop to protect freedom of expression” (Pointes Protection, at para. 53). This weighing exercise is the core of the analysis on a motion such as this, as it allows the court to strike an appropriate balance between the protection of individual reputation and freedom of expression, the competing values at the heart of anti-SLAPP legislation. (Hansen, para 58.)

[167] Fundamentally, the open-ended nature of s. 137.1(4)(b) provides courts with the ability to scrutinize what is really going on in the particular case before them: s. 137.1(4)(b) effectively allows motion judges to assess how allowing individuals or organizations to vindicate their rights through a lawsuit—a fundamental value in its own right in a democracy—affects, in turn, freedom of expression and its corresponding influence on public discourse and participation in a pluralistic democracy. (Pointes Protection, at para. 81.)

[168] For purposes of the weighing exercise under s. 137.1(4)(b), the plaintiff is required to show, not merely the existence of harm, but harm that is “serious”. The presumption of damages in a defamation action may be sufficient to establish the existence of harm but this will not show that it is “serious”: Hansman v. Neufeld, 2023 SCC 14, 73 B.C.L.R. (6th) 173, at para. 67; Pointes Protection, at paras. 70-71; Bent, at para. 144.

[169] Serious harm requires the plaintiff to provide evidence from which an inference can be drawn that the harm is of a magnitude sufficient to outweigh the public interest in protecting the defendant’s expression. (Gill v. Maciver, 2024 ONCA 126, at para. 40.) The plaintiff must also show a causal link between the defendant’s expression and the serious harm they claim to have suffered. (Gill, at para. 41.) The harm need not be quantifiable. The harm may be reputational in nature giving rise only to a claim for general damages. A fully developed damages brief is not required. (Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, at para. 46.)

[170] Dr. Fowlie pleaded that he suffered harm as a result of the Defendants’ emails in that his position as WCL’s CAO was terminated. Dr. Fowlie pleaded that his reputation was tarnished among his peers and within the professional dispute resolution community. Dr. Fowlie also pleaded that he suffered physical harm, including stress, sleeplessness and exacerbation of an existing medical condition and depression.

[171] Dr. Fowlie’s evidence in supported of the harm he suffered in in the following paras. from his affidavit:

47. These emails were vicious, cruel and false. They were clearly meant to hurt me personally and to ruin my reputation.

48. The Defendants succeeded in driving me out of my job at Wrestling Canada Lutte and destroying my reputation in amateur sports. I had put in years of volunteer work and academic training for this career, and the defendants took all that away from me.

49. Sports has always been very important to me. I have been involved in amateur sports all my adult life. Through my career, I worked hard to develop the skills and credentials to be a sports ombudsman and dispute resolution officer. I was employable as long as I had a good reputation.

50. The defendants took that career from me. Not only did they succeed in having me fired, but they also spread their defamation through the sports community.

51. This was not a one-off situation. It was not an accident or a momentary lapse of judgment. This was a sustained and coordinated campaign that lasted for months, sometimes with multiple emails a day, sent to the key people in sports oversight in Canada.

52. I was paid $200 an hour for my work with Wrestling Canada Lutte, but the job meant much more to me than money. This was work that I believed made a difference and had a future. Now it is almost certain that I will never be able to do it again.

53. I hope I can keep my position as Commonwealth Games Ethics Commissioner, but I believe this is unlikely unless this campaign of defamation stops, and I can clear my good name.

[172] Although Dr. Fowlie stated in his Affidavit that the Defendants had driven him out of his job at WCL, his evidence was contradicted by the Executive Director of WCL, Ms. Medwidsky, who was examined as a non-party witness on this Motion.

[173] Ms. Medwidsky stated unequivocally that WCL’s termination of Dr. Fowlie’s contract was not based on anything any of the Defendants wrote or said about Dr. Fowlie. Ms. Medwidsky said that WCL terminated Dr. Fowlie’s contract for its own reasons, based on its own observations of Dr. Fowlie and its own concerns about Dr. Fowlie’s conduct. Ms. Medwidsky said WCL’s concerns arose from Mr. Ó’Ceallacháin’s complaint about emails Mr. Spinney had sent to him. Ms. Medwidsky said that WCL concluded that Dr. Fowlie had not treated the complaint impartially, that he had attempted to insert himself into the investigation, that he had tried to taint the panel and that he had not carried out the duties of CAO in an appropriate manner.

[174] Dr. Fowlie’s counsel argued that Ms. Medwidsky’s evidence should be accorded little weight, because Dr. Fowlie has sued WCL. I was not persuaded that litigation between Dr. Fowlie and WCL should have any bearing on my assessment of the credibility or reliability of Ms. Medwidsky’s evidence. Further, and significantly, Dr. Fowlie had the opportunity to challenge Ms. Medwidsky’s evidence on cross-examination but chose not to do so.

[175] If Dr. Fowlie suffered harm as a result of the loss of his position with WCL, this harm cannot be attributed to the Defendants.

[176] Further, although Dr. Fowlie stated in his Affidavit that the Defendants took away his career in sports dispute resolution, there was no other evidence in support of this statement and ample evidence to the contrary, which came from Dr. Fowlie himself:

• On cross-examination, Dr. Fowlie said that he applied to become a full-time member of the Immigration and Refugee Board in January or February of 2021, while he was working for WCL. He was appointed to the IRB effective July 19, 2021. In his statement of claim, Dr. Fowlie pleaded that when he began to work for the IRB, he divested himself of all of his non-volunteer sport activities, other than his position with WCL. Dr. Fowlie continues to work as a member of the IRB. His decision to divest himself of his non-volunteer sport activities was unrelated to the Defendants’ emails.

• On cross-examination, Dr. Fowlie confirmed that he continues to occupy roles in the sports community. He serves as deputy chair of the Ethics Commission for the Commonwealth Games; he serves as ombudsman for BC Hockey and he volunteers for Right to Play. Dr. Fowlie had roles with the Canadian Sport Institute Pacific, but he resigned from this organization. He is a member of the Canadian Olympic Committee, although he expects not to be in the future because the Committee has eliminated his class of membership.

• Although Dr. Fowlie said in his Affidavit, sworn in October 2023, that he believed that it was unlikely that he would be able to keep his position with the Commonwealth Games, on cross-examination he said that in March 2023, the position had been renewed until March 2027.

• Although Dr. Fowlie pleaded that he had suffered physical harm as a result of the Defendants’ emails, he did not refer to his health in his affidavit and did not include any medical evidence in the record.

[177] Dr. Fowlie attempted to rely on an Affidavit from John Reid, a former RCMP Superintendent who said he had known Dr. Fowlie for the past 15 years. Mr. Reid said that Dr. Fowlie had been devastated by what Mr. Reid described as a “sustained harassment campaign” by the Defendants. Mr. Reid said that Dr. Fowlie’s mental health had been profoundly affected by “this orchestrated mobbing.” Mr. Reid said that Dr. Fowlie had had to see a therapist and to be put on anti-anxiety medication. He said that Dr. Fowlie also inexplicably lost the hearing in one ear for six months and developed atrial fibrillation and thyroid cancer. Mr. Reid also said that the stress, anxiety and physical repercussions of the flood of falsehood and slanderous material had impacted Dr. Fowlie’s physical fitness as he had become incapable of keeping his regular routine.

[178] I allowed a Motion by the Defendants to strike Mr. Reid’s Affidavit. I did this for several reasons:

• The Affidavit was served after the expiry of the deadline in an Associate Justice’s order for delivery of any supplementary responding evidence on the motion;

• Dr. Fowlie’s counsel had told the Defendants that he would not be filing any supplementary responding evidence;

• After Dr. Fowlie’s counsel told the Defendants that he would not be filing any supplementary responding evidence, the parties examined Ms. Medwidsky.

• Dr. Fowlie served Mr. Reid’s affidavit after Ms. Medwidsky was examined.

• Dr. Fowlie did not seek an extension of the deadline to deliver supplementary responding evidence;

• Although Mr. Reid stated in his Affidavit that Dr. Fowlie had been negatively affected by the Defendants’ emails and that Dr. Fowlie’s health had suffered because of the emails, Mr. Reid was not an expert witness and there was no suggestion that he had any medical training. Mr. Reid was not qualified to give opinions about the state of Dr. Fowlie’s health or about how the Defendants’ emails might have affected his health.

[179] I concluded that Mr. Reid’s Affidavit was out of time and that it did not contain any admissible evidence relevant to the issues on the motion.

[180] In his oral submissions, Dr. Fowlie’s counsel emphasized that there is a presumption of general damages in defamation actions and then confirmed, clearly, that Dr. Fowlie is relying on that presumption in this case.

[181] Dr. Fowlie relies on Lascaris v. B’nai Brith Canada, 2019 ONCA 163. In Lascaris, the plaintiff was a lawyer and also the justice critic for the Green Party of Canada. The defendant, B’nai Brith Canada, an organization that describes itself as the primary grassroots voice for the Canadian Jewish community, published articles that said the plaintiff supported terrorists. In Lascaris, the Court of Appeal held that the weighing exercise under s. 137.1(4)(b) favoured the plaintiff. The Court held that if the plaintiff was successful at trial, he could be entitled to significant damages, because accusing a person of supporting terrorists “is about as serious and damaging an allegation as can be made in these times.” The Court held that that reality was sufficient to establish the seriousness of the harm under s. 137.1(4)(b), and to rebut the defendant’s submission that the plaintiff had failed to lead any evidence to show damage to his reputation.

[182] The Court adopted the following observation from Cooke v. MGN Ltd., [2014] EWHC 2831, [2015] 2 All E.R. 622 (Q.B.), at para 43:

Some statements are so obviously likely to cause serious harm to a person's reputation that this likelihood can be inferred. If a national newspaper with a large circulation wrongly accuses someone of being a terrorist or a paedophile, then in either case (putting to one side for the moment the question of a prompt and prominent apology) the likelihood of serious harm to reputation is plain, even if the individual's family and friends knew the allegation to be untrue.

[183] The Court of Appeal also noted that the plaintiff was a lawyer, and a lawyer’s reputation is central to their ability to carry on their profession.

[184] Dr. Fowlie says that his situation is similar to the facts in Lascaris, because the Defendants made serious allegations about him and because his reputation is key to his livelihood.

[185] Lascaris was decided before the Supreme Court of Canada released its decision in Hansman, which said that “to succeed on the weighing exercise [under s. 137.1(4)(b)], a plaintiff must provide evidence that enables the judge “to draw an inference of likelihood” of harm of a magnitude sufficient to outweigh the public interest in protecting the defendant’s expression. Presumed general damages are insufficient for this purpose, as are bare assertions of harm.” (Hansman, at para. 67, with citations removed.)

[186] There are also some significant differences between the facts and evidence in Lascaris and in Dr. Fowlie’s case:

• In Lascaris, the allegation that the plaintiff was a terrorist supporter was first published on B’nai Brith’s website in August 2016 and republished in a Tweet in April 2017. The allegation was, therefore, on the internet, available to the world at large. In contrast, the Defendants’ emails were sent to a relatively small group of identified individuals.

• In Lascaris, there was no evidence of damage to the plaintiff’s reputation; the Court of Appeal likened the situation to a case in which “a national newspaper with a large circulation wrongly accused someone of being a terrorist or a pedophile” in which the likelihood of serious harm to reputation is plain. In Dr. Fowlie’s case, the likelihood of serious harm to reputation is not so plain and there is an evidentiary record that does not show that Dr. Fowlie has suffered serious harm.

[187] Any harm Dr. Fowlie may have suffered to his reputation as a result of the Defendants’ emails must be assessed in relation to the reputation he had had previously. (Levant v. De Melle, 2022 ONCA 79, at paras. 52-53; Raymond E. Brown, Brown on Defamation: Canada, United Kingston, Australia, New Zealand, United States, 2^nd ed. (looseleaf), s. 25.13.) Any presumption of harm must be limited if there is evidence that the plaintiff’s reputation “cannot be said to be unblemished.” (Levant, at para. 52.) The record before me showed that Dr. Fowlie’s reputation had some blemishes well before he encountered the Defendants:

• In 2010, the Canadian Transportation Agency found against Dr. Fowlie in a complaint against Air Canada. Dr. Fowlie had complained that Air Canada had refused to allow him to board a flight from Montreal to Vancouver because he had been disruptive on a flight from Paris to Montreal earlier in the day. The CTA found that Dr. Fowlie engaged in abusive and offensive behaviour, which had included telling a flight attendant to shut up and referring to the attendant as “the little man’ in a conversation with the flight service director. The CTA also found that Dr. Fowlie had produced two different versions of notes he took at the time of the incident and that a modified version of the notes purportedly taken at the time of the incident presented his behaviour and state of mind in a better light. The CTA said that the fact that the notes had been altered raised questions about the credibility of Dr. Fowlie’s version of events. At the time, Dr. Fowlie was the ombudsman for the Internet Corporation for Assigned Names and Numbers. The CTA decision was reported in both the Globe & Mail and the Ottawa Citizen.

• In 2019, the Sport Dispute Resolution Centre of Canada allowed the appeal of a track and field coach whom Dr. Fowlie had banned for life from Athletics Canada. The SDRCC found that Dr. Fowlie had relied on a biased investigation report when he made the decision and had breached his duty of fairness by refusing even to read the report of a different investigator who had arrived at different conclusions.

[188] I find that Dr. Fowlie has failed to provide evidence from which an inference can be drawn that the harm he has suffered or is likely to suffer is of a significant magnitude. That said, the magnitude or seriousness of the harm cannot be assessed in isolation—it is one of two factors in a balancing exercise.

[189] Once harm has been established and shown to be causally related to the expression, s. 137.1(4)(b) requires that the harm and corresponding public interest in permitting the proceeding to continue be weighed against the public interest in protecting the expression. Therefore, as under s. 137.1(3), public interest becomes critical to the analysis. However, “public interest” is used differently in s. 137.1(4)(b) than it was under s. 137.1(3). Under s. 137.1(3), the question was only whether the expression related to a matter of public interest. That assessment is not qualitative—i.e. it does not matter whether the expression helps or hampers the public interest. Under s. 137.1(4)(b), in contrast, the legislature expressly makes the public interest relevant to specific goals: permitting the proceeding to continue and protecting the impugned expression. Therefore, not just any matter of public interest will be relevant. Instead, the quality of the expression, and the motivation behind it, are relevant here.” (Pointes, at paras. 73 – 74.)

[190] In my view, the issues raised by the defendants in their emails were important and weigh in favour of protection. The specific issue they were addressing was whether Dr. Fowlie was the right person for the integral and sensitive role of CAO at WCL. The greater issue was whether the worrisome culture of abuse within WCL identified by the 2018 Bennett report would be eradicated and whether amateur wrestlers in Canada would ever feel that they were protected by a complaints and discipline procedure in which they could have faith. With respect to the motivation behind the emails, the defendants all had a history of advocating for the rights of amateur wrestlers. There was no evidence that any of them had a history with Dr. Fowlie or any animus against him personally.

[191] I am also of the view that allowing Dr. Fowlie’s claim to continue could make other participants in wrestling and other amateur sports reluctant to speak out if they perceive unfairness or abuse in the future. This phenomenon is often referred to as a “chilling effect.” (Hansman, at paras. 76-77.) It is in the public interest that participants in sport have the courage to “speak truth to power” without fear of being sued for hundreds of thousands of dollars.

[192] In respect of the “what is really going on” inquiry referred to in para. 81 of Pointes Protection, I make the following observations:

• Dr. Fowlie started an action for defamation against the three Defendants seeking damages of more than $800,000 but has failed to provide evidence from which an inference of serious harm could be drawn;

• Dr. Fowlie did not request a retraction or an apology from any of the Defendants before starting his action;

• Dr. Fowlie made a criminal harassment complaint against the Defendants to the RCMP;

• After his contract was terminated, Dr. Fowlie made a complaint about WCL to Ontario’s Ministry of Labour, alleging that the Defendants had engaged in a campaign of harassment and defamation against him and that WCL had failed to respond appropriately;

• Dr. Fowlie filed a complaint with WCL against the Defendants about the emails that are the subject matter of this action;

• Dr. Fowlie has complained about Mr. Spinney, who is an investment advisor, to the Mutual Fund Dealers Association, the Financial Services Regulatory Authority and Mr. Spinney’s member dealer, alleging that he is a harasser.

• Dr. Fowlie sent the Coaching Association of Canada and Western University, where Mr. Spinney coaches wrestling, a copy of an arbitrator’s decision which was critical of Mr. Spinney, saying on cross-examination that he did so because it was his firm belief that Mr. Spinney did not belong in the Canadian sports system.

• Dr. Fowlie wrote to McMaster University, where Mr. Shamiya coaches wrestling, enclosing emails written by Mr. Shamiya which Dr. Fowlie said constituted criminal harassment by cyberbullying.

[193] Dr. Fowlie has not shown that harm likely to be or to have been suffered as a result of the Defendants’ expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the interest in protecting the expression. Dr. Fowlie has presented no evidence from which an inference of serious harm could be made. Although Dr. Fowlie lost his contract with WCL, the loss of the contract was attributable to his performance, not to the defendants. If his reputation has taken a hit because of the termination of his contract with WCL, that too cannot be attributed to the Defendants. Dr. Fowlie continues to be a member of the Immigration and Refugee Board. There was no evidence that he lost any paying or non-paying positions as a result of the Defendants’ email. Further, the CTA and SRDCC decisions referred to earlier in these reasons, which are available on-line, are evidence that Dr. Fowlie’s reputation had been tarnished by his own conduct long before he encountered the Defendant.

[194] In these circumstances, given the steps Dr. Fowlie has taken to punish the Defendants, and his inability to present evidence from which an inference of serious harm can be made, it would be difficult to find that Dr. Fowlie’s $825,000 action against the Defendants is a legitimate effort to seek a remedy rather than to seek retribution. I find that his claim for defamation bears the hallmarks of a SLAPP suit. If he has not abandoned his claims for “false light” and internet harassment, I make the same observations about those claims, which do not appear to apply to the facts of this case, but which were added to his Statement of Claim anyway.

[195] Dr. Fowlie has failed to show that harm likely to be or to have been suffered as a result of the Defendants’ expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the interest in protecting the expression.

DISPOSITION

[196] The Defendants’ Motions are granted.

[197] Ms. Schiavulli’s Motion is granted because, in respect of his claim against her, Dr. Fowlie was unable to meet his burden under s. 137.1(3) or s. 137.1(4).

[198] Mr. Spinney’s and Mr. Shamya’s Motions are granted because Dr. Fowlie was unable to meet his burden under s. 137.1(4).

[199] Dr. Fowlie’s action is dismissed in its entirety.

COSTS

[200] At the hearing of the Motion, I asked the parties to ensure that costs outlines were exchanged and uploaded to Caselines (“Case Center”). I assume that this has now been done.

[201] If the parties are unable to agree on costs of the Motions (the s. 137.1 Motion, the Defendants’ successful Motion to Strike, the Plaintiff’s abandoned Motion to Strike), the Defendants may deliver brief written submissions within 14 days. Dr. Fowlie may then deliver brief written submissions in response within 14 days of receipt of the last of the Defendants’ submissions. The Defendants, at their option, may then serve reply submissions within seven days of receipt of Dr. Fowlie’s submissions.

Heather Williams, J.

Released: September 13, 2024

COURT FILE NO.: CV-22-88853

DATE: 2024-09-13

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Dr. Frank Fowlie

Plaintiff

AND

David Spinney, Ahmed Shamiya, and Mara Schiavulli

Defendants

REASONS FOR DECISION

Williams, J.

Released: September 13, 2024

[^1]: In para. 1 of his statement of claim, Dr. Fowlie requested $500,000 in damages for defamation and $250,000 for publicity for placing the plaintiff in a false light. Although Dr. Fowlie did not request damages for the tort of internet harassment, he referred to this tort in paras. 22 and 23 of his statement of claim. In his factum and oral submissions in response to this motion, Dr. Fowlie focused only on his claim for defamation. When Mr. Spinney’s counsel said in his oral submissions that Dr. Fowlie had abandoned the claims for “false light” and internet harassment, Dr. Fowlie’s counsel did not object. As there is, however, nothing in the record to positively confirm that these claims have been abandoned, I have referred to them briefly in these reasons where I have considered the merits of Dr. Fowlie’s action and have found them to be without merit.

[^2]: An investigator concluded that the allegations about Mr. Spinney and Ms. Parks were not substantiated. An arbitrator concluded that three of eight emails sent by Mr. Spinney amounted to harassment, that one was evidence of a failure to “focus comments or criticisms appropriately” and that four did not violate WCL’s Code of Conduct.

[^3]: Dr. Fowlie brought a Motion to strike references to the CTA decision from the evidence on this Motion, on the basis that it was irrelevant, and it unfairly attacked his credibility. After both parties made their oral submissions, Dr. Fowlie abandon the Motion.

[^4]: Own the Podium is described in the record as a development organization for Olympic athletes.

[^5]: ICANN is the Internet Corporation for Assigned Names and Numbers.

[^6]: WCL gave Dr. Fowlie 30 days’ notice of termination of his contract as CAO on September 16, 2021.

[^7]: In his affidavit, Mr. Shamiya said that although he used the YouTube platform, the video was “unsubscribed” which meant that it was not available to members of the public and that a specific link was required in order to view it. Mr. Shamiya said that as of the date of his affidavit, the video had been viewed 23 times and that viewers included members of his support network, WCL and his employer, McMaster University.

[^8]: As I noted previously in these reasons, Mr. Shamiya was self-represented at the hearing of the motion and said that he echoed the arguments of Mr. Spinney and Ms. Schiavulli. Many of the comments made by Mr. Shamiya were the same or similar to those of Mr. Spinney and Ms. Schiavulli. Where their comments are the same or similar, I infer that Mr. Shamiya relies on the factual foundations for the comments that are relied upon by Mr. Spinney and Ms. Schiavulli.