Court File and Parties

COURT FILE NO.: CV-24-00714130-0000 DATE: 20241022

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Lindsay Joseph and Lucid Tattoos Inc. Plaintiffs – and – Marianna McCue and Courtney Monteith Defendants

Counsel: Brian N. Radnoff and Robert J. Alfieri, for the Plaintiffs (Defendants in the Monteith counterclaim) (responding parties) Lorne Honickman, agent for Mark A.B. Donald, for Marianna McCue, Defendant (moving party) Tom Collins, for Courtney Monteith, Defendant (Plaintiff in the counterclaim) (moving party)

HEARD: September 27, 2024

REASONS FOR DECISION

STEVENSON J.

Introduction

[1] The plaintiff, Ms. Lindsay Joseph, is a tattoo artist who provides tattooing services through the corporate plaintiff, Lucid Tattoos Inc. The plaintiffs had an active online profile and social media presence which they used around August 2021-August 2023 to solicit clients.

[2] The plaintiffs have sued the two defendants, Ms. Marianna McCue and Ms. Courtney Monteith, for defamation arising from their tattooing misadventures. The defendants now bring this anti-SLAPP motion to dismiss the claim pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 [CJA]. A SLAPP is a strategic lawsuit against public participation.

Marianna McCue

[3] The defendant Ms. McCue responded to the plaintiffs’ advertisements for tattoo services. After some scheduling issues, the plaintiff Ms. Joseph commenced tattooing Ms. McCue on December 21, 2022. A second session on January 26, 2023 went badly. It is alleged that Ms. McCue left without paying, when the tattoo was almost complete.

[4] The financial terms agreed to between the plaintiff and Ms. McCue are in dispute. The details of the size of Ms. McCue’s tattoo are in dispute. Where precisely it would be located on Ms. McCue’s body is in dispute. The use of numbing cream is in dispute. Ms. Joseph’s preparedness and attentiveness are in dispute.

[5] Ms. Joseph called the police when Ms. McCue failed to pay part of the fee. Ms. McCue said that the fact she left the tattoo parlour without paying was a misunderstanding. In her statement of defence, she now claims that she paid under protest, “and only out of fear that she would be inconvenienced and emotionally harmed by the Plaintiffs pursuing unwarranted criminal charges against her”.

[6] Ms. Joseph published details about Ms. McCue’s non-payment online, specifically on Instagram. Ms. Joseph also told other tattoo artists about the “tattoo and dash”.

[7] Ms. McCue wrote a negative Facebook review calling Ms. Joseph “an absolute CROOK”. This stated:

Tattoo artist scammer that scammed me out of THOUSANDS of dollars, and is now claiming online that I left without paying because I called her on her bullshit scam – her name is Lindsay from Lucid Tattoos in Cambridge. She’s an absolute CROOK and she’s posted my personal information and drivers license online publicly.

[8] Notwithstanding this public comment, Ms. McCue privately texted Ms. Joseph:

Hi Lindsay,

First I want to apologize for leaving today, I was afraid and it was the cowardly thing for me to do to leave without discussing it with you first. This whole thing comes down to a big misunderstanding, multiple in fact. The first misunderstanding was during the consult, where I was under the understanding that you quoted me $1700 for the entire tattoo. Which is why my deposit was 50% of the total, $850. I did not know that your intention was that the $1700 was per day. That would have never been in my budget, and I never would have booked the tattoo if I knew that. so that was misunderstanding 1. Next was when it came to the actual design, the consult was for the tattoo to go over the birds on my collarbone, but then a few days before the session you said you can’t do it over the birds. Which changed the tattoo all together. But you wouldn’t cancel and refund even after the initial consult design was determined that you couldn’t do it. So, with a smaller design, I figured it would be at most a 1 day session. The next misunderstanding was the numbing cream. I did not know that you were going to charge me for that entire day when you only did 2.5 hours of tattooing, so my understanding was that you would finish the tattoo today for half a day. At that point with a half done tattoo, I was of course obligated to come back to finish it. So I already knew I was going to be out the $850 deposit, but didn’t think you would really charge for a full day just to finish the last 3 hours of the piece. When you came in an hour late this morning, so it didn’t matter if you were late by an hour. but then I realized you intended to charge for another full day. I did not have any extra money to spend on this. To be honest even the $1700 initial quote was a huge splurge for me, but I was excited to have another tattoo from you. I had no idea your prices had jumped so drastically, from when I got my knee piece from you in 2018.

So, when I realized I wouldn’t be able to afford another $1000 (this is accounting for the $850 deposit coming off the total), I was so scared. I know it was wrong of me to leave, and I am sorry.

Now my name and drivers licence and photos have been posted all over online and I have strangers messaging me and saying absolutely awful things to me, and calling me a bad mother etc. That damage cannot be undone, now. I’m so hurt from all this.

The police officer said that as this is a civil matter you could take me to court for the remaining thousand dollars. I really don’t want to have to go through that, for either of us.

I want to respect your art and time, and I have paid you a total of $2912 for this tattoo to date.

I would really like to come to some sort of agreement, please. I am able to send you another $100 to please end this privately and civilly, and call the matter finished. Can we please agree to that? I’m exhausted over all this and sick to my stomach.

I hope you can consider this. Mistakes were made, again I am sorry. I’d just like to put it behind us.

Marianna

[9] Ms. Joseph did not accept Ms. McCue’s apology and demanded payment in full. Ms. McCue tried to get Ms. Joseph to accept a lesser sum, saying, “And I can also agree with that [payment] to not post about you in negative online reviews, etc.”

[10] Ms. Joseph considered this to be a threat by Ms. McCue to post negative reviews.

[11] Ms. McCue paid the full amount owed on January 27, 2023.

[12] Neither this payment nor Ms. McCue’s apology ended matters.

[13] Ms. McCue posted TikTok videos between May 10 and July 20, 2023 which repeated some of the Facebook comments and added new allegations about Ms. Joseph’s tardiness, Ms. Joseph’s lack of diligence, law enforcement advising Ms. McCue they had received multiple complaints about the plaintiffs’ business practices, and the plaintiffs continuing to “scam” people.

[14] On May 9, 2023, Ms. McCue discovered and reposted a TikTok social media post by the co-defendant Ms. Monteith, which also criticized the plaintiffs for their business practices.

[15] Ms. McCue subsequently made a number of other posts criticizing the plaintiffs.

Courtney Monteith

[16] On May 5, 2023, Ms. Joseph had a consultation Zoom call with the defendant Ms. Monteith about a potential tattoo. Ms. Monteith paid a $1000 deposit and another $1,695 for what was called “option 1”. Ms. Monteith was unhappy with Ms. Joseph’s concept sketch for the tattoo and later alleged that Ms. Joseph had traced it from another tattoo artist’s design. The dispute escalated and the business relationship terminated. Ms. Joseph said that Ms. Monteith’s deposit was forfeited.

[17] Between May 9 and May 14, 2023, Ms. Monteith posted eight TikTok videos with hashtags such as #tattoogate, #badbusiness, #worstexperience, and #tattoohorrorstory. Ms. Monteith’s videos dealt with her complaints about whether an extra fee was truly “optional” as opposed to a hidden cost, and whether Ms. Joseph had plagiarized a pre-existing design.

[18] Ms. Monteith did not initially identify Ms. Joseph. Ms. Monteith linked her videos to the McCue TikTok videos. Ms. Monteith shared the McCue videos with her followers.

[19] Later, Ms. Joseph was explicitly named by both defendants.

[20] The videos went viral and now have close to 28 million views in total.

[21] The dispute also reached the mainstream media and was picked up in Business Insider, Bell Media, The Independent (UK), and NBC News.

Litigation

[22] The plaintiffs allege that both defendants defamed them. The plaintiffs’ statement of claim was issued on February 25, 2024.

[23] The corporate plaintiff Lucid Tattoos Inc. ceased doing business in January 2024. It says this happened because of the defendants’ defamation.

[24] Ms. McCue’s statement of defence is dated April 16, 2024. Ms. McCue denies defamation but, in the alternative, relies on truth/justification, fair comment, qualified privilege, and responsible communication. The qualified privilege defence maintains that the defendants had a social and moral duty to publish.

[25] Ms. Monteith’s statement of defence is dated March 1, 2024. Ms. Monteith does not allege qualified privilege but includes a counterclaim for $2,695 in damages for breach of contract, unjust enrichment, and breach of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched A.

Statutory Provisions

[26] The defendants bring this anti-SLAPP motion to dismiss the plaintiffs’ claim pursuant to s. 137.1 of the CJA.

[27] This section appears in the CJA under the heading “Prevention of Proceedings that Limit Freedom of Expression on Matters of Public Interest (Gag Proceedings)”.

[28] Section 137.1(1) - (4) of the CJA provides:

137.1 (1) The purposes of this section … are,

(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

Definition, “expression”

(2) In this section,

“expression” means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.

Order to dismiss

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

No dismissal

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

(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and

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

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

[29] A strategic lawsuit against public participation may be described as a lawsuit against individuals or organizations who take a position on a matter of public interest. The issue arises where a lawsuit is not being used to pursue a bona fide claim but instead is being used to suppress legitimate expression by others: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at para. 2 [Pointes].

[30] These provisions have been analyzed in many cases after Pointes, including Marcellin v. London (Police Services Board), 2024 ONCA 468, 2024 CarswellOnt 8728; Coulson v. Ojha, 2023 ONSC 5822, 2023 CarswellOnt 16053, aff’d on appeal 2024 ONCA 538, 2024 CarswellOnt 10076; Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, 452 D.L.R. (4th) 712 [Sokoloff]; Grist v. TruGrp Inc., 2021 ONCA 309, 459 D.L.R. (4th) 489 [Grist]; Hansman v. Neufeld, 2023 SCC 14, 73 B.C.L.R. (6th) 173; Echelon Environmental Inc. v. Glassdoor Inc., 2022 ONCA 391, 2022 CarswellOnt 6726 [Echelon]; Dent-X Canada v. Houde, 2022 ONCA 414, 2022 CarswellOnt 7075 [Dent-X]; Bradford Travel and Cruises Ltd. v. Viveiros, 2019 ONSC 4587, 2019 CarswellOnt 13145 [Bradford Travel]; and 2110120 Ontario Inc. v. Buttar, 2023 ONCA 539, 2023 CarswellOnt 12555 [Buttar].

[31] On this motion the moving parties must establish as a threshold issue that the proceeding arises from an expression by the moving parties that relates to a matter of public interest: s. 137.1(3) of the CJA; Buttar, at para. 39.

[32] If the defendants cross the threshold, the plaintiffs (the responding parties) must then establish that there are “grounds to believe” that the proceeding has substantial merit and that the defendants have no valid defence: s. 137.1(4)(a) of the CJA.

Does the “expression” relate to a matter of public interest?

[33] The court must consider the expression in context and ask what the impugned expression is about or pertains to. There is no single test for identifying the public interest: Pointes, at paras. 100-102. The guiding principles are summarized in Buttar, at para. 42 which provides:

• 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: 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.

[34] The cases of Sokoloff and Grist are apposite for answering this question in this case. These cases are authority for the proposition that expressions cannot be said to relate to a matter of public interest where the fundamental issue is a private dispute, such as a contractual dispute between the parties.

[35] Sokoloff concerned expressions by a lawyer who was in a dispute with a service provider who also provided client referrals. The Court of Appeal stated at paras. 31-33:

[31] Plainly, the public has an interest in the ethical conduct of lawyers. But it does not follow that every lawyer’s transactions are a matter of public interest, nor does it follow that expression touching on the ethical conduct of an individual lawyer necessarily relates to the public’s interest in the ethical conduct of lawyers.

[32] The task of the motion judge under s. 137.1(3) is to determine “what the expression is really about”, bearing in mind the purpose of s. 137.1: protecting expression relating to matters of public interest and safeguarding the fundamental value of public participation in democracy: Pointes (SCC), at para. 30. Again, only expression relating to a matter of public interest attracts the statute’s protection; “expression that simply makes reference to something of public interest” does not: Pointes (SCC), at para. 29.

[33] Understood in context, the expression at issue in this case is really about a private commercial dispute between the appellants and the respondents. The respondents happen to be lawyers. Mr. Campbell’s expression does not relate to a matter of public interest on that account.

[36] The expression in Sokoloff was found to be essentially about the appellants’ commercial dispute with the respondents. It did not rise to the level of a matter of public interest for the purposes of s. 137.1 simply because it involved allegations of impropriety against a lawyer.

[37] Similarly in Grist, at para. 23, a lawsuit about allegedly defamatory expressions in Ontario Labour Relations Board proceedings was allowed to continue, where the expressions were made in the greater context of employees leaving a building restoration company to start a competing business. That too was outside the scope of s. 137.1. The definition of public interest may be relatively broad: Buttar, at para. 42; Bradford Travel, at paras. 31-32; Singh v. Sandhu, (January 26, 2022), Brampton, 3181/21 (S.C.), at paras. 83-84. But it is not so broad that it can result in the dismissal of this type of dispute in which the expressions are focussed on private interests.

[38] In this case the expressions are essentially about private contractual disputes between customers and the service provider in the context of tattoo services. While the public is interested in them, they do not involve matters of public interest for the purposes of s. 137.1: Pointes, at para. 29.

[39] This case is akin to both Sokoloff and Grist.

[40] The defendants cannot invoke the protection of s. 137.1 simply by claiming these expressions were published to a tattoo community which ought to have the benefit of this discussion without a defamation lawsuit hanging over the people making the expressions. But the expressions here are first and foremost a dispute about pricing and financial terms with some references to collateral issues such as plagiarism: Dent-X, at para. 10.

[41] While the TikTok videos may have gone viral and attracted public attention, this does not change the fundamental nature of this dispute from a consumer business dispute into a matter of public interest which would warrant dismissal of the claim. Popular interest is not public interest for these purposes. I acknowledge that an expression about a private dispute can nevertheless relate to a matter of public interest. I have decided that this is not the case here, when one considers the expressions in question, rather than the topic of that expression: Echelon, at para. 11.

[42] It is my view that what is really going on is a business dispute involving issues which should remain in the court system (still subject to the potential application of rr. 21 and 25 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and related rules about pleadings in defamation cases): Pointes, at para. 81. This is not a case of the wealthy or powerful trying to shutdown legitimate dissent. Public participation in democracy is not threatened by allowing these defamation claims to be tested in court.

[43] It is impossible and inappropriate at this stage to comment on the merits of the claim or the defences. The merits must be left to be determined in the normal course of the action. An anti-SLAPP motion is not a summary trial, and the motion judge should avoid taking a “deep dive” into the merits: Pointes, at para. 52; Sokoloff, at para. 47; Subway Franchise Systems of Canada Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 26, 455 D.L.R. (4th) 525, at paras. 54-55.

[44] The motion is dismissed.

[45] After reviewing the parties’ written submissions on costs, I have determined that a costs award is appropriate in the circumstances, notwithstanding the presumption against costs in s. 137.1(8). A portion of the costs sought by the responding parties should be payable because the impugned expressions are not only unrelated to a matter of public interest, but the lawsuit has none of the characteristics of a SLAPP. Dent-X at paras 13-14, aff’d on appeal 2022 OCA 414 at para. 15-17; Sokoloff at paras. 45-46. In my view these motions were being used tactically by the moving parties to attempt to further their private interests without any thought of the public interest in the sense contemplated in s.137.1.

[46] I have determined that the fair and reasonable quantum of costs in respect of these two motions shall be $55,000 all-inclusive. But the unsuccessful parties do not have to pay this entire sum. These costs should be divided into two tranches.

[47] The first tranche of $25,000 all-inclusive, is related to litigating the issue of alleged public interest which has been dealt with in these reasons. It is appropriate that the unsuccessful parties should pay this sum. This is not a case like Accruent LLC v. Mishimagi, 2016 ONSC 6924 in which both sides were found to be engaging in strategic behaviour against the other and the plaintiff had brought an obviously weak claim with a view to trying to extract a gag order. (Accruent at paras. 7-9). To the contrary, this is a case in which the motions were clearly inappropriate, and it is appropriate that the moving parties should not be fully insulated from costs.

[48] In respect of the first tranche, the defendants, severally in equal parts, shall each pay the plaintiff within 30 days the all-inclusive sum of $12,500.

[49] The second portion of $30,000 all-inclusive is related to the significant amount of work which was done on the merits of the claims and defences, in respect of which I have not had to make any decision, although these issues were dealt with in the evidence and the factums. This sum is not payable at this time.

[50] The $30,000 represents work which will still be useful in the continuing action. This sum is awarded “in the cause”. i.e., if the plaintiffs prevail at trial, each defendant shall pay $15,000. If one or both defendants prevail at trial, the plaintiff shall pay one of both of them $15,000.

[51] I have considered the plaintiffs’ offer to settle dated May 16, 2024 but I have decided that a higher level of costs is not appropriate given that they can not be said to have “beaten” their offer in light of this costs award and because much of the work for which costs are claimed will still be used in the action and will still be subject to future events.

Justice C. Stevenson

Released: October 22, 2024