Court File and Parties
Court File No.: CV-24-00095074-0000 Date: 2024-09-27 Ontario Superior Court of Justice
B E T W E E N:
EDWARD CORNELL, VINCENT GIRCYS, LINDSAY MILNER, SHAUN ZIMMER, ANDREW MILLER, JONKER TRUCKING INC., ANDREW FERA, WAYNE NARVEY, CLAYTON MCALLISTER, KATHLEEN MARKO, NOCIOLA FORTIN, ARIELLE FORTIN, THOMAS QUIGGIN, TIMOTHY TIESSEN O’JAY LAIDLEY, ERIC BUECKERT, PETER TERRANOVA, NANCY TERRANOVA, RICHARD OCELAK, and KERRI-ANN HAINES Plaintiffs – and – JUSTIN TRUDEAU, CHRYSTIA FREELAND, DAVID LAMETTI, DOMINIC LEBLANC, BILL BLAIR, MARCO MENDICINO, ATTORNEY GENERAL OF CANADA, JODY THOMAS, ROYAL CANADIAN MOUNTED POLICE, DENIS BEAUDOIN, BRENDA LUCKI, STEVE BELL, ROBERT BERNIER, OTTAWA POLICE SERVICES BOARD, OTTAWA POLICE SERVICE, THE TORONTO-DOMINION BANK, CANADIAN IMPERIAL BANK OF COMMERCE, BANK OF MONTRÉAL, NATIONAL BANK OF CANADA, ROYAL BANK OF CANADA, BANK OF NOVA SCOTIA (SCOTIABANK), CANADIAN TIRE SERVICES LTD. doing business as CANADIAN TIRE BANK, MERIDIAN CREDIT UNION, ASSINIBOINE CREDIT UNION, GULF & FRASER CREDIT UNION, STRIDE CREDIT UNION, SIMPLII FINANCIAL, CANADIAN ANTI-HATE NETWORK, BERNIE FARBER, JOHN DOE, and ABC CORP. Defendants
Counsel: Blair Ector, Lorne Honickman, and Brendan Hill, for the Plaintiffs (Responding Parties) Jeff G. Saikaley and Albert Brunet, for the Defendants Canadian Anti-Hate Network and Bernie Farber (Moving Parties)
Heard: July 5, 2024
Reasons for Decision on s. 137.1 Motion
RYAN BELL J.
Overview
1This action relates to the protests which occurred in Ottawa in January and February 2022, and the invocation of the Emergencies Act, R.S.C. 1985, c. 22, and the enactment of the Proclamation Declaring a Public Order Emergency, S.O.R./2022-20, the Emergency Measures Regulations, S.O.R./2022-21, and the Emergency Economic Measures Order, S.O.R./2022-22.
2The plaintiffs claim a total of $44,000,000, jointly and severally, against the defendants. The named defendants include government actors and agencies, police defendants, financial institutions, and the moving parties, the Canadian Anti-Hate Network (“CAHN”) and Bernie Farber (together, the “CAHN defendants”).
3The principal claims asserted against the CAHN defendants are defamation and civil conspiracy. [1] In regard to defamation, the plaintiffs plead the CAHN defendants provided false information to other defendants and media organizations designed to harm the plaintiffs. The plaintiffs also plead the CAHN defendants or their proxies provided false or highly exaggerated information to the various Crown defendants and police defendants in support of the invocation of the Emergencies Act and the enactment of the impugned regulations.
4In regard to civil conspiracy, the plaintiffs plead the defendants and “individuals involved” worked together to share information, and “disseminated misinformation about the Plaintiffs, enacted the Unlawful Enactments on unconstitutional pretenses and ultimately froze or otherwise searched and seized the financial services, assets, and private property of the Plaintiffs in an unlawful manner.”
5The CAHN defendants say that this is a “classic” strategic lawsuit against public participation and move under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 for an order dismissing the action against them. They contend the proceeding arises from an expression relating to a matter of public interest and the claims against them are untenable in law. They allege the defamation claim is deficient because the pleading fails to include any particulars of the alleged defamatory statements and they also raise various defences to the defamation claim, including the plaintiffs’ non-compliance with the notice provisions of the Libel and Slander Act, R.S.O. 1990, c. L.12. The CAHN defendants argue the civil conspiracy claim is, in essence, a dressed-up defamation claim that ought to be dismissed. Finally, the CAHN defendants argue the harm in allowing the action to continue against them far outweighs the harm to the plaintiffs in dismissing the action. The CAHN defendants seek damages under s. 137.1(9).
6The plaintiffs oppose the motion. They say the motion is premature and a “colourable attempt at summary dismissal.” The plaintiffs argue the CAHN defendants have not identified which expressions are said to be in the public interest and on which defences they intend to rely. The plaintiffs argue their claims in defamation and civil conspiracy have substantial merit and deny that the civil conspiracy claim is a dressed-up defamation claim. The plaintiffs say they have put forward uncontroverted evidence of specific, serious harm caused by the CAHN defendants’ expressions. The plaintiffs dispute the CAHN defendants’ entitlement to damages in the event the motion succeeds.
7Both the plaintiffs and the CAHN defendants argue that I should place no weight on certain paragraphs of the opposing party’s affidavit. I deal with this as a preliminary issue. In addition, I must determine the following:
(i) Does the proceeding arise from an expression that relates to a matter of public interest (the threshold question)?
(ii) Are there grounds to believe that the proceeding against the CAHN defendants has substantial merit and that they have no valid defence to the claims against them (the merits-based hurdle)?
(iii) Is the harm suffered by the plaintiffs as a result of the CAHN defendants’ expressions sufficiently serious that the public interest in permitting the action to continue outweighs the public interest in protecting that expression (the public interest hurdle)?
(iv) Should damages be awarded to either CAHN or Mr. Farber under s. 137.1(9)?
8For the following reasons, I conclude the action arises from an expression that relates to a matter of public interest. The plaintiffs have not met their burden under the merits-based hurdle or under the public interest hurdle. The action against the CAHN defendants is dismissed, with costs. I make no award of damages under s. 137.1(9).
Background and procedural context
9The plaintiffs describe themselves as “Canadians from all walks of life … who were all deprived of their Charter rights and suffered damages as a result of the [Emergencies Act and the impugned regulations].” The plaintiff Vincent Gircys, a retired member of the Ontario Provincial Police who attended the Ottawa protests, provided evidence on the motion.
10CAHN is an independent, non-profit organization whose mandate is to monitor, research, and counter hate groups by providing education and information to the public, the media, researchers, courts, law enforcement, and community groups. Mr. Farber is the founding Chair Emeritus of CAHN. Richard Warman, a board member of CAHN, and Mr. Farber provided evidence on the motion.
11The plaintiffs issued a notice of action on February 14, 2024, court file no. CV-24-00094733-0000. Instead of filing the statement of claim, the plaintiffs then issued a statement of claim for this proceeding, court file no. CV-24-00095074-0000. The CAHN defendants ask that any order dismissing the action against them apply to both proceedings.
12The CAHN defendants were not served with the originating documents of this proceeding. [2] Instead, they were made aware of the litigation through a post on X by Mr. Gircys. CAHN also discovered that plaintiffs’ counsel had issued a “Press Release” announcing the action:
Today Loberg Ector LLP commenced proceedings in Ontario Superior Court of Justice (Ottawa) on behalf of 20 victims of the Trudeau government’s unconstitutional misuse of the provisions of the Emergencies Act in February 2022. The Plaintiffs in this action seek compensation and related relief arising from the unjustified and unconstitutional actions of the Liberal government, as well as the actions of certain police agencies and Canadian financial institutions who followed the unlawful orders of the Liberal government, and other defendants who participated in or promoted these actions.
Preliminary issue: impugned paragraphs of the affidavits
(i) Mr. Gircys’ affidavit
13The CAHN defendants submit that no weight should be given to statements made in numerous paragraphs of Mr. Gircys’ affidavit because the statements are argumentative, constitute improper and inadmissible opinion, and/or are irrelevant. The plaintiffs, similarly, contend that portions of Mr. Warman’s affidavit are inadmissible because they contain impermissible opinion, are argumentative, or irrelevant.
14It is not necessary for me to review the impugned paragraphs of Mr. Gircys’ affidavit in detail because the affidavit is not an opportunity to elaborate on, particularize, or reframe the allegations against the CAHN defendants so as to permit the plaintiffs to effectively amend their claim: see Thatcher-Crain v. Clearview (Township), 2023 ONCA 96, 480 D.L.R. (4th) 639, at paras. 52-53.
15In any event, the legal positions and arguments in Mr. Gircys’ affidavit—including statements such as “which I believe to be defamatory” [3] and “supports the fact that Mr. Farber and CAHN are more concerned with villainizing those who have different views than them” [4] —are irrelevant and improper. It is for the trier of fact, not the witness, to draw inferences and conclusions: Ismail v. Fleming, 2018 ONSC 6780, at para. 19. At paragraphs 75-79 of his affidavit, Mr. Gircys discusses the decision in Warman v. Kay, [2022] O.J. No. 5045, and highlights what he describes as a “key finding” [5] and “findings which [he] believe[s] are relevant to this anti-SLAPP motion.” [6] These are examples of argumentative and improper statements and I place no weight on them.
(ii) Mr. Warman’s affidavit
16The plaintiffs challenge statements made in paragraphs 14, 31-36, 57-62, and 63-64 of Mr. Warman’s affidavit. While the plaintiffs have not particularized their complaints, with respect to paragraph 14, presumably the plaintiffs take issue with the opening words “Quiggin is a controversial figure.” Mr. Quiggin is a plaintiff in this action. He did not file an affidavit on the motion. I place no weight on Mr. Warman’s characterization of Mr. Quiggin as “controversial.”
17Paragraphs 31-36 of Mr. Warman’s affidavit describe the hyperlinks to “Plaintiff Funding” provided in the press release announcing the action. The statements contained in these paragraphs do not constitute opinion or argument. I cannot conclude that the statements are irrelevant. That said, I did not find it necessary to rely on the details of these statements in reaching my conclusions under s. 137.1.
18At paragraphs 57-62 of his affidavit, Mr. Warman provides some examples of past threats against CAHN and its officials. At paragraphs 63-64, Mr. Warman refers to CAHN’s successful motion to strike a claim against CAHN in the Federal Court. This evidence is said to be relevant to the CAHN defendants’ claim for damages and I have considered the evidence in that context.
Section 137.1 of the Courts of Justice Act
19Strategic lawsuits against public participation or “SLAPPs” are “lawsuits initiated against individuals or organizations that speak out or take a position on an issue of public interest … the plaintiff, […] is in fact manipulating the judicial system in order to limit the effectiveness of the opposing party’s speech and deter that party, or other potential interested parties, from participating in public affairs”: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at para. 2. Section 137.1 is intended to provide a remedy against this particular form of abuse of process and to weed out strategic or abusive claims at an early stage: 40 Days for Life v. Dietrich, 2024 ONCA 599, at para. 38.
20Section 137.1(3) places the initial burden on the moving party to satisfy the judge that the proceeding arises from an expression relating to a matter of public interest. Once that showing has been made, the burden under s. 137.1(4) shifts to the responding party to satisfy 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.
21If the responding party cannot satisfy the motion judge that they have met their burden under s. 137.1(4), then the s. 137.1 motion will be granted and the proceeding will be dismissed: Pointes, at paras. 18, 33.
22Section 137.1(4)(b) is “the key portion of the s. 137.1 analysis”; it “serves as a robust backstop for motion judges to dismiss even technically meritorious claims if the public interest in protecting the expression that gives rise to the proceeding outweighs the public interest in allowing the proceeding to continue”: Pointes, at para. 62; Boyer v. Callidus Capital Corporation, 2023 ONCA 233, 480 D.L.R. (4th) 293, at para. 26; Armstrong v. Corus Entertainment Inc., 2018 ONCA 689, 143 O.R. (3d) 54, at para. 90.
The threshold question
23Section 137.1(3) requires that there must be an expression, the expression must relate to a matter of public interest, and the proceeding for which dismissal is sought must arise from the expression: Pointes, at paras. 21, 31; Grist v. TruGrp Inc., 2021 ONCA 309, 156 O.R. (3d) 171, at para. 16. The plaintiffs argue that the CAHN defendants have brought this motion prematurely—“prior to seeking particulars and instead of bringing a pleadings motion”—and that, as a result, the CAHN defendants cannot discharge their onus under s. 137.1(3).
24I disagree. I am satisfied that the proceeding arises from expressions relating to a matter of public interest.
25The “public interest” concept is to be given a broad and liberal interpretation, consistent with the legislative purpose of s. 137.1(3): Pointes, at para. 26. The expression is to be assessed “as a whole” and it must be asked whether “some segment of the community would have a genuine interest in receiving information on the subject”: Pointes, at para. 27; Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at paras. 101-102.
26The concept of public interest involves matters in which the public has some substantial concern beyond “mere curiosity or prurient interest”, and includes a matter of public interest that affects the welfare of citizens or concerns an issue of public controversy or concerns an issue about which citizens have the right to make fair comment: Grant, at para. 105; Pointes, at para. 27. The burden at this stage of the analysis is “purposefully not an onerous one” and “there is no qualitative assessment of the expression at this stage”: Pointes, at para. 28.
27The plaintiffs argue that, because the CAHN defendants have failed to identify the impugned statements, the court cannot be satisfied that “whatever was said, it was said by the CAHN Defendants, the proceedings arise from it and it was in the public interest.” The plaintiffs appear to concede that the statement of claim lacks particulars; however, the plaintiffs maintain that instead of pursuing this motion under s. 137.1, the CAHN defendants ought to have brought a motion to strike, made a demand for particulars, or “otherwise required that the Plaintiffs amend their pleadings prior to bringing this motion.”
28With respect, the plaintiffs cannot be permitted to rely on their own failure to plead particulars of alleged defamatory statements to argue that the CAHN defendants have not met their burden under s. 137.1(3). To permit the plaintiffs to do so would effectively circumvent s. 137.1(6) which expressly prohibits further amendments to the claim in order to avoid an order under s. 137.1 dismissing the proceeding: see Thatcher-Craig, at paras. 52-53. It would also be contrary to the purpose of s. 137.1: to weed out strategic or abusive claims at an early stage.
29The plaintiffs plead at paragraph 251 of the statement of claim: “Immediately preceding, during, and following the Unlawful Enactments, the Defendants, any or all of them, published false statements designed to lower the public opinion of anyone participating in the Ottawa Protests, including the Plaintiffs.” The CAHN defendants are alleged to have provided “[f]alsified or otherwise highly exaggerated information” to “the Crown Defendants and the Police Defendants in support of the Unlawful Enactments.” [7] The plaintiffs allege that “[t]he statements made by the CAHN Defendants and their proxies defamed the Plaintiffs and influenced the decision to invoke the Emergencies Act” [8] and that the statements were “false and were made with malice.” [9] The impugned statements—particularized or not—are alleged to have been made by the CAHN defendants about those participating in the Ottawa protests, including the plaintiffs. These impugned statements—particularized or not—are expressions by the CAHN defendants. The action against the CAHN defendants arises from the expressions.
30The remaining issue is whether the expressions relate to a matter of public interest. In Li et al. v. Barber et al., 2024 ONSC 775, at para. 18, MacLeod R.S.J. found that the Ottawa protests were expressions on matters of public interest. I agree with the CAHN defendants that if the protests are expressions on matters of public interest, it follows that expressions that relate to those protests, including individuals who participated in them, are also matters of public interest. The statements made by the CAHN defendants are alleged to have influenced the decision to invoke the Emergencies Act. The decision to invoke the legislation and to enact regulations are issues in the public interest.
31I have not considered the specific expressions raised in Mr. Gircys’ affidavit. “Looking past” the actual statement of claim to allegations set out in Mr. Gircys’ affidavit is not permitted: see Thatcher-Craig, at para. 53. The plaintiffs have pleaded—albeit without particulars—that the CAHN defendants made statements about those participating in the Ottawa protests and made statements that influenced the decision to invoke the Emergencies Act. I am satisfied that, as pleaded in the statement of claim, these expressions relate to a matter of public interest.
32The burden now shifts to the plaintiffs to show there are grounds to believe that each claim has substantial merit and there is no valid defence to the claim: Courts of Justice Act, s. 137.1(4)(a).
The merits-based hurdle
33For 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 favor of the plaintiff”: Pointes, at para. 49. The motion judge must be satisfied that there is a basis in the record and the law for drawing such a conclusion; the claim must be legally tenable and supported by evidence that is reasonably capable of belief: Pointes, at para. 49.
(i) Defamation
34The elements of the tort of defamation are well-established. A plaintiff must prove: (i) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (ii) that the words in fact referred to the plaintiff; and (iii) that the words were published, meaning that they were communicated to at least one person other than the plaintiff: Grant, at para. 28.
35To determine whether words are capable of a defamatory meaning, the trial judge will construe the words according to the meaning they would be given by reasonable persons of ordinary intelligence; the trial judge “will not consider what persons setting themselves to work to deduce some unusual meaning might succeed in extracting from them”: Mantini v. Smith Lyons LLP (2003), 64 O.R. (3d) 516 (C.A.), at para. 10.
36The statement of claim must disclose a “coherent body of fact” about the elements of a claim for defamation, such as “the gist of the statement, time, place, speaker and audience”: PMC York Properties Inc. v. Siudak, 2022 ONCA 635, 473 D.L.R. (4th) 136, at para. 49. The plaintiffs’ statement of claim does not do so. Instead, the claim of defamation against the CAHN defendants consists only of several bald allegations that amount to no more than a fishing expedition such that the CAHN defendants are left in the dark about the claim to be met: see PMC, at para. 49.
37In addition, the tort of defamation requires that the plaintiff be identified by the defendant. However, the bald allegations and unparticularized expressions in the statement of claim do not identify any of the plaintiffs. The plaintiffs allege that the impugned expressions referenced the participants at the Ottawa protests, and because some of the plaintiffs participated at the protests, they were defamed by the CAHN defendants’ expressions. But in cases where a plaintiff alleges harm as a member of a group, “[w]ords aimed at defaming a group are only actionable by the members of the group that have severally been singled out”: Hudspeth v. Whatcott, 2017 ONSC 1708, at para. 193. In other words, individuals in a group must be able to show that the words were about them in particular: Hudspeth, at para. 197. Given the unparticularized expressions and the fact that all the plaintiffs, except Mr. Quiggin, were unknown to the plaintiffs, there are no grounds to believe that a claim for group defamation could be established in this case.
38I therefore conclude the defamation claim is not legally tenable.
39The plaintiffs submit that, to the extent there are deficiencies in the pleading, they are “not fatal” and “can be cured through amendments”: see PMC, at paras. 30-31. The plaintiffs argue that as a result of this motion, they were immediately precluded from amending their pleading (by operation of s. 137.1(6)). They argue that the CAHN defendants “served themselves” in a strategic attempt to “crystallize any deficiencies” for their advantage on this motion.
40I reject the plaintiffs’ arguments. First, the CAHN defendants did not “serve themselves.” The CAHN defendants were entitled to serve a notice of intent to defend the action; having done so, they are deemed to have been served with the originating process: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 16.01(2).
41Second, I agree with the CAHN defendants that the plaintiffs are not allowed to take another “kick at the can” through an opportunity to amend their claim. This would be contrary to s. 137.1(6): Thatcher-Craig, at paras. 52-53.
42The plaintiffs have also not satisfied me that there are grounds to believe that the CAHN defendants have no valid defence to the defamation claim. Contrary to the plaintiffs’ assertion, the CAHN defendants disclosed intended defences in their notice of motion, including: s. 6 of the Libel and Slander Act, the two-year limitation period under the Limitations Act, 2002, S.O. 2002, fair comment, qualified privilege, and responsible communication on a matter of public interest.
43I need only to consider the defences under the Libel and Slander Act and the Limitations Act, 2002. Section 5(1) of the Libel and Slander Act requires a plaintiff in a defamation claim relating to a newspaper or a broadcast to provide notice in writing to defendants within six weeks of the libel coming to the plaintiff’s knowledge. Section 6 requires that the claim for libel in a newspaper or in a broadcast be commenced within three months after the libel has come to the plaintiff’s knowledge.
44Failure to comply with s. 5 of the Libel and Slander Act is an absolute bar to litigation: M.B. v. Niagara Regional Police Services Board, 2023 ONSC 6296, at para. 64. Section 5(1) of the Libel and Slander Act applies to all defendants, regardless of whether they are media or non-media defendants: St. Elizabeth Home Society v. Hamilton (City), at para. 114, citing Watson v. Southam Inc. (2000), 189 D.L.R. (4th) 695, at para. 53.
45While the impugned expressions are not particularized in the statement of claim, assuming they relate to a newspaper or a broadcast, the plaintiffs did not serve the CAHN defendants with a notice of libel. They did not commence their action within three months of becoming aware of the expressions. In his affidavit, Mr. Gircys acknowledges that he became aware of the impugned expressions approximately 14 months before the statement of claim was issued.
46The two-year limitation period defence under the Limitations Act, 2002 also has relevance at this stage of the analysis. On the plaintiffs’ theory of the case, the expressions made by the CAHN defendants defamed the plaintiffs and influenced the decision to invoke the Emergencies Act. It follows that the impugned expressions must have been made before the Emergencies Act was invoked on February 14, 2022. Therefore, the two-year limitation period had already run when the notice of action was issued on February 14, 2024. At the very least, the plaintiffs are unable to meet their burden of showing there are grounds to believe that a limitations defence under the Limitations Act, 2002 would not apply.
(ii) Civil conspiracy
47An actionable conspiracy will exist in the following situations: (i) whether the means used by the defendants are lawful or unlawful, where the predominant purpose of the defendants’ conduct is to cause injury to the plaintiff; and (ii) where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result. In the latter situation, it is not necessary that the predominant purpose of the defendants’ conduct is to cause injury to the plaintiff. In both situations, however, there must be actual damage suffered by the plaintiff: PMC, at paras. 69-70.
48A plaintiff is not permitted to “dress up” what is essentially a defamation claim as another claim to effectively evade the notice and limitations provisions and the special defences that apply to a defamation action: see Elliott et al v. Canadian Broadcasting Corp. et al. (1994), 16 O.R. (3d) 677 (Gen. Div.) [10], at paras. 59-60; Byrne v. Maas, at para. 9. The CAHN defendants argue that the plaintiffs’ claim that “[e]ach of the Defendants ultimately assisted one another in their unlawful actions perpetrated against the Plaintiffs” [11] is simply a dressed up unsubstantiated allegation of defamation.
49My analysis of this issue is limited because the impugned statements are not particularized in the statement of claim. The plaintiffs appear to advance two categories of impugned statements—those that allegedly defamed the plaintiffs, and those that allegedly influenced the decision to invoke the Emergencies Act. [12] The expressions that are said to form the basis of the defamation claim are not necessarily co-extensive with the expressions that ground the civil conspiracy claim.
50In addition, the damages claimed in the statement of claim for civil conspiracy go beyond the presumed damages for loss of reputation: see Subway Franchise Systems of Canada Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 25, 455 D.L.R. (4th) 548 [13], at para. 58. As set out at para. 283 of the statement of claim,
… the Plaintiffs … seek the following monetary relief against the Defendants, jointly and/or severally, for:
a. General and special damages in the amount of $500,000 for each Plaintiff for negligence, breach of contract, unlawful interference, misfeasance of public office, trespass to chattels, civil conspiracy, and abuse of process for the unlawful seizure of bank accounts by the Defendants;
b. General and special damages in the amount of $100,000 for each Plaintiff for injurious falsehoods and defamation resulting from the conduct of the Defendants;
51Therefore, for purposes of this motion, I conclude that the conspiracy claim is not a dressed-up defamation claim.
52However, the plaintiffs have not met their burden under the merits-based hurdle in relation to the civil conspiracy claim against the CAHN defendants. The civil conspiracy allegations consist of five paragraphs in the statement of claim:
The actions of the Defendants were taken together in concert with other Defendants. The Crown Defendants, Financial Institution Defendants, Police Defendants, CAHN Defendants, and individuals involved worked together to share information, disseminated misinformation about the Plaintiffs, enacted the Unlawful Enactments on unconstitutional pretenses and ultimately froze or otherwise searched and seized the financial services, assets, and private property of the Plaintiffs in an unlawful manner.
Each of the Defendants ultimately assisted one another in their unlawful actions perpetrated against the Plaintiffs.
The Plaintiffs’ injuries were consequences of the concerted actions of the Defendants working together in a way that directly caused the harm suffered.
The actions of the Defendants were unlawful, and the Defendants knew or ought to have known in the circumstances that their actions would likely cause injury to the Plaintiffs.
The actions of the Defendants for their civil conspiracy gives rise to compensable damages and ought to be considered as an aggravating factor when apportioning liability and quantum of damages owed to the Plaintiffs.
53I conclude that the civil conspiracy claim against the CAHN defendants is not legally tenable for two principal reasons. First, a civil conspiracy requires that the alleged conspirators acted “in combination, that is, in concert, by agreement or with a common design”: Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460, 106 O.R. (3d) 427, at para. 26. But in this case, the plaintiffs plead that the defendants “ultimately assisted one another.” I agree with the CAHN defendants that the ultimate consequence of an action does not matter; what is required is that they acted in concert.
54Second, in a conspiracy pleading, it is necessary to discretely set out the particular acts of each co-conspirator so that each defendant can know what they are alleged to have done as part of the conspiracy; this is because although conspiracy is a tort committed by a group, the liability of each defendant arises because they individually participated as a member of the group. It is not appropriate to lump all the defendants together into a general allegation that they conspired to injure the plaintiff: Fasteners & Fittings Inc. v. Wang, 2020 ONSC 1649, at paras. 155-56. I will not revisit here my earlier comments regarding inadequate pleadings in the context of anti-SLAPP motions. In this case, the conspiracy claim consists of nothing more than bald assertions and lumps all the defendants together.
55I am not satisfied that there are grounds to believe there is no valid defence to the conspiracy claim. The defence of no agreement is supported by the sworn evidence of Mr. Warman, on behalf of CAHN, and Mr. Farber. Their evidence is that they “have no knowledge of any agreement between any of the co-Defendants to cause harm or damage to any of the Plaintiffs, or any agreement whatsoever.” This evidence is reasonably capable of belief; the defence cannot be said to have no real prospect of success: see Pointes, at paras. 59-60.
The public interest hurdle
56In light of my conclusions on the merits-based hurdle, I address the public interest hurdle briefly, for the sake of completeness. Under s. 137.1(4)(b), the plaintiffs must satisfy the motion judge that the harm suffered as a result of the defendants’ expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
57As a prerequisite to the weighing exercise under s. 137.1(4)(b), the plaintiffs must show (i) the existence of harm; and (ii) causation: Pointes, at para. 68. The motion judge “must be able to make an informed assessment, at least at a general or ‘ballpark’ level, about the nature and quantum of the damages suffered or likely to be suffered by the plaintiff”: 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, 142 O.R. (3d) 161, at para. 91.
58The plaintiffs falter on both the existence of harm and causation.
59Mr. Gircys is the only plaintiff who tendered evidence on this motion. In his affidavit, he states that he has suffered harm from the freezing of his bank accounts and that he has “lost several relationships and had a strain placed on other relationships … This includes a strained relationship with my son.” He also states that he “feel[s] isolated and discouraged about the state of our country.” Mr. Gircys’ unparticularized assertions are not sufficient on a s. 137.1 motion. Mr. Gircys’ assertion that he feels isolated and discouraged about the state of the country does not give rise to compensable harm.
60I have no evidence as to the nature and quantum of damages allegedly suffered by the other plaintiffs.
61There is no evidence that Mr. Gircys’ bank accounts were frozen because of the CAHN defendants. There is no evidence that Mr. Gircys’ relationships have been lost or become strained because of the CAHN defendants. There is no causal link between the impugned expressions and the alleged harm. I agree with the CAHN defendants that it is implausible that the impugned expressions—which Mr. Gircys admits he only became aware of some months later—caused strains on or the loss of his personal relationships.
62In considering the importance to the public interest of protecting the impugned expressions, I will not address specific statements alleged to have been made by the CAHN defendants because those statements were not particularized in the statement of claim. The CAHN defendants argue that non-profit organizations should not feel pressured to limit their expressions on matters of public interest, and that this is of particular importance in this case given CAHN’s mandate to monitor and counter hate speech and other destructive activities. They say that forcing them to remain in a claim of this magnitude when there is no valid claim against them would be punitive.
63There is no valid claim against the CAHN defendants. Mr. Gircys’ assertion that it “is important to our fundamental rights and freedoms and truth seeking in our justice system” is not a valid reason to include them as defendants. There is a public interest in not deterring non-profit organizations from participating in public affairs. In my view, the claim against the CAHN defendants is precisely the type of claim that s. 137.1 is intended to weed out. Any public interest in permitting the proceeding to continue against the CAHN defendants is far outweighed by the public interest in protecting the impugned expressions.
Damages
64The CAHN defendants both seek damages under s. 137.1(9): $20,000 for Mr. Farber and $10,000 for CAHN. Section 137.1(9) provides that if, in dismissing a proceeding under s. 137.1, the judge finds the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award damages to the moving party. The remedy of damages is to be used in cases where the plaintiff’s motive was to punish, silence, or intimidate the defendant: United Soils Management Ltd. v. Mohammed, 2019 ONCA 128, at paras. 34-35.
65There is evidence in the record that Mr. Farber has been dealing with serious health issues. While the CAHN defendants concede that this alone would not be sufficient to award damages (and there is no suggestion that his health issues were caused by the issuance of the claim), they say that Mr. Farber is entitled to damages because the claim was brought and prosecuted in an abusive manner: the plaintiffs have used the litigation to advance conspiracy theories for collateral purposes and the manner in which the claim has been prosecuted “speak[s] to a broader improper purpose in pursuing this claim seeking revenge against CAHN for perceived impropriety beyond the case at hand.”
66The CAHN defendants point to the plaintiffs’ cross-examination of Mr. Warman, during which Mr. Warman was asked questions suggesting support of the “Liberal” government, and the plaintiffs’ efforts to obtain disclosure of large numbers of documents in “an apparent goal of furthering conspiracy theories against CAHN.” The CAHN defendants concede, however, that there is no evidence that any of the plaintiffs have made any sort of threat against either CAHN or Mr. Farber. The evidence in the record of another lawsuit recently launched against CAHN, and found to be without merit, is of no assistance to me in assessing whether to award damages because there is no connection between the second proceeding and the plaintiffs in this action.
67Damages will not flow in every case. A costs award on a full indemnity basis may address any harm to a defendant that arises from a SLAPP proceeding. Section 137.1(9) is intended to provide compensation for harm done directly to the defendant arising from the impact of the instituted proceeding. It is not intended to sanction the plaintiff’s conduct through a punitive damage award; any need to sanction conduct is achieved through s. 137.1(7): United Soils, at paras. 37-38.
68There is no evidence in the record that the plaintiffs engaged in active efforts to intimidate, to punish, or to inflict harm on the CAHN defendants. I therefore decline to award damages to either CAHN or Mr. Farber.
Conclusion
69The CAHN defendants’ motion under s. 137.1 of the Courts of Justice Act is granted. The action against them is dismissed, both in this proceeding and in court file no. CV-24-00094733-0000.
70The CAHN defendants are entitled to their costs of the motion and in the action on a full indemnity basis unless I determine that such an award is not appropriate in the circumstances: Courts of Justice Act, s. 137.1(7). In the event the parties are unable to agree on costs, they may make written submissions limited to a maximum of three pages, excluding relevant attachments. The CAHN defendants shall deliver their costs submissions by October 11, 2024. The plaintiffs shall deliver their responding costs submissions by October 25, 2024. There shall be no right of reply. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
Justice R. Ryan Bell Released: September 27, 2024
Footnotes
[1] The plaintiffs’ written and oral submissions did not address any of the other claims asserted against the CAHN defendants. [2] As at the hearing date of the motion, none of the named defendants had been served. [3] Paras. 26 and 37 of Mr. Gircys’ affidavit. [4] Para. 54 of Mr. Gircys’ affidavit. [5] Para. 76 of Mr. Gircys’ affidavit. [6] Para. 77 of Mr. Gircys’ affidavit. [7] Statement of Claim, para. 252. [8] Statement of Claim, para. 253. [9] Statement of Claim, para. 254. [10] Aff’d (1995), , 25 O.R. (3d) 302 (C.A.), leave to appeal refused, [1995] S.C.C.A. No. 393. [11] Statement of Claim, at para. 269. [12] Statement of Claim, at para. 253. [13] Leave to appeal refused, [2021] S.C.C.A. No. 39607.