Court File and Parties
COURT FILE NO.: CV-22-00678783-0000 DATE: 20240129
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sri Ayyappa Samajam of Ontario AND: Karthick Mahlingam Nathakumar
BEFORE: J.T. Akbarali J.
COUNSEL: David Morawetz, for the plaintiff Mark Donald, for the defendant
HEARD: January 16, 2024
Endorsement
Overview
1The defendant brings this motion under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.48, seeking a dismissal of the plaintiff’s action, arguing that it is a strategic lawsuit against public participation (“SLAPP”).
Brief Background
2The defendant, Kathick Nanthakumar, has been a devotee of the plaintiff, the Sri Ayyappa Samja of Ontario, a Hindu temple, since his arrival in Canada in 2005 from Sri Lanka. The temple is a place of worship for Hindus who trace their roots to Sri Lanka, as well as to India, and other locations. It is a religious and charitable organization.
3The dispute that has arisen between the parties must be understood in the context of the Sri Lankan civil war and its aftermath. During the war, at least some factions among the ethnic Tamil minority sought an independent homeland. The idea of a Tamil homeland was resisted by the Sri Lankan government, which was comprised in large measure of members of the ethnic Sinhalese majority. The 26-year war ended, after significant suffering and trauma among the people of Sri Lanka, without the creation of an independent Tamil state.
4The defendant is ethnically Tamil, and a supporter of Tamil culture and nationhood. The devotees and members of the plaintiff temple include Tamils, Sinhalese, and members of other ethnic groups. Different devotees and members of the plaintiff have different views about the Sri Lankan civil war, the Sri Lankan government, and Tamil nationhood.
5The conflict between the parties has its genesis in events that took place on November 25, 2021. On that day, the defendant had planned to attend a religious ceremony at the temple known as a pooja. The pooja occurred during Maaveerar Naal, an observance that takes place each November that is an important time for the community. The defendant, who is a florist, brought a floral arrangement for display. The arrangement he brought prominently featured glory lilies, called “karthikaipoo” in Tamil. I refer to the flowers in these reasons as karthikaipoo because that is how the parties refer to them.
6The parties have different views about the meaning of the karthikaipoo. According to the defendant, the flower is associated with the Hindu religion, Tamil culture, and Tamil nationhood. The plaintiff disagrees; according to it, the karthikaipoo is a purely political symbol of the Liberation Tigers of Tamil Eelam (“LTTE”), a Tamil nationalist group that has been recognized by Canada as a terrorist organization.
7The parties’ narratives about what happened next differ, but everyone agrees that the karthikaipoo was not displayed during the pooja, a fact which caused a disagreement between the parties. The plaintiff states that it did not want to display an overtly political symbol, which would have been inconsistent with its desire to remain apolitical. The defendant states that the plaintiff has never been apolitical, and that he was told by certain of the plaintiff’s representatives that the karthikaipoo was “garbage”, and the temple would not display it because it could not explain its display to the Sri Lanka consulate in Toronto. The plaintiff denies that such comments were made.
8The defendant was concerned about the plaintiff’s actions and the manner in which he perceived the plaintiff was deferring to the Sri Lankan consulate. He was also cognizant of an incident that took place in 2019, when the members of the plaintiff’s board decided to invite a representative of the Sri Lankan consulate to attend the temple for a festival known as Kumbabishekam. Word of the invitation was, in the words of the plaintiff’s witness, “leaked” by one of the board members to the community, resulting in complaints from the temple’s Tamil population. The board rescinded the invitation. However, the community later learned that members of the temple’s board went to the Sri Lankan Consulate General to deliver a ceremonial offering without informing the community in advance, an action which offended at least some segment of the Tamil population at the temple.
9In view of his concerns, on November 29, 2021, the defendant took to Facebook where he posted a video in Tamil explaining to the community his view about what had occurred during the karthikaipoo dispute, and explaining his concerns that president and secretary of the temple were causing the temple to behave with partiality towards the Sri Lankan government, and to take a wrongheaded approach to the issues of Tamil nationhood. He sought an apology from the plaintiff.
10The Facebook video attracted significant commentary from the Tamil community.
11On December 5, 2021, the defendant posted a second video in Tamil on Facebook dealing with the same topics. He addressed a statement the plaintiff had made about the dispute after his first video had been posted, some discussions he had had with two members of the plaintiff’s board about ending the dispute, and the fact that the plaintiff had served him with a trespass notice barring him from attending the temple.
12In December 2022, after the second video was posted to Facebook, there were protests outside the temple. The protestors carried signs charging the plaintiff with being anti-Tamil, and inappropriately deferential to the wishes of the Sri Lankan government. One video of the protests shows a physical altercation between a protestor and someone who had come out of the temple, instigated by the supporter of the temple.
13Also after the second video was posted to Facebook, a former board member of the temple came to the defendant and made allegations of financial impropriety at the temple which had not been reported to the community. He provided the defendant with a package of documents to support his claims.
14In early January 2022, the defendant made a third Facebook video where he spoke about the protests, his concerns about the temple leadership, and the allegations of financial impropriety that had been disclosed to him.
15Thereafter, the plaintiff commenced an action in defamation. While its pleadings make broad allegations of defamation, in argument the plaintiff concentrated principally on the allegations of financial impropriety (the “financial expression”), though it indicated it had not given up on its allegations of defamation related to the defendant’s speech regarding the cultural direction of the temple (the “cultural expression”).
16I address the specific allegations related to the defendant’s expression in greater detail where necessary in my analysis of the issues, below.
Issues
17This motion raises the following issues:
a. Should this action be dismissed under s. 137.1 of the Courts of Justice Act? Answering this question requires me to consider:
i. With respect to each of the financial expression and the cultural expression,
Does the expression made by the defendant relate to a matter of public interest?
If so:
a. Are there grounds to believe that the proceeding has substantial merit?
b. Are there grounds to believe that the moving party has no valid defence in the proceeding?
c. Is the harm likely to have been suffered by the plaintiff as a result of the defendant’s expression sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression?
Brief Conclusion
18In my view, the proceeding must be dismissed under s. 137.1 of the Courts of Justice Act. The defendant has proven that the expression at issue is on matters of public importance. The plaintiff has failed to disprove that there are reasonable grounds to believe that the financial expression was justified; to the contrary, the record establishes that the sting of the financial expression was substantially true. Moreover, the plaintiff has failed to prove that there are reasonable grounds to believe that the defence of fair comment does not apply to the cultural expression. I develop the reasons for my conclusions in my analysis of these issues, below.
Legal Framework
19Section 137.1 of the Courts of Justice Act provides:
(1) The purposes of this section and sections 137.2 to 137.5 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 the participation by the public in debates on matters of public interest will be hampered by fear of legal action.
(2) In this section,
“expression” means any communication, regardless of whether it is made verbally or nonverbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.
(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.
20The Supreme Court of Canada considered s. 137.1 in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 222, and Bent v. Platnick, 2020 SCC 23. It concluded that the section places burdens on both parties. First, the moving party defendant bears the initial burden to satisfy the court, on a balance of probabilities, that the proceeding in question arises from an expression made by the defendants, and that the expression relates to a matter of public interest. If the defendant meets that threshold onus, the burden shifts to the plaintiff to satisfy the court that (i) there are grounds to believe that the proceeding has substantial merit, (ii) there are grounds to believe that there is no valid defence(s), and (iii) the harm suffered by the plaintiff as a result of the defendant’s expression is sufficiently serious that the public interest in permitting the plaintiff’s action to proceed outweighs the public interest in protecting the defendant’s expression. The plaintiff must prove all three factors for the case to continue.
21In Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, the Court of Appeal noted, at para. 33, that anti-SLAPP legislation was “designed to stop a plaintiff from silencing a defendant by pursuing meritless litigation that served to intimidate and undermine public expression”. The process is meant to be “efficient and economical”. A granular analysis, or a “deep dive” into the record is not required.
22I turn now to consider the elements of the test.
Does the proceeding arise from expression that relates to a matter of public interest?
23When determining whether expression relates to a matter of public interest, the expression must be assessed as a whole. It must be asked whether some segment of the community would have a genuine interest in receiving information on the subject. The statutory language used in s. 137.1(3) confirms that “public interest” ought to be given a broad interpretation: Pointes, at paras. 27-28.
24“Ultimately, the inquiry is a contextual one that is fundamentally asking what the expression is really about”: Pointes, at para. 30. The Supreme Court of Canada underscored the importance of remembering the animating purpose of s. 137.1(3): to protect expression made in relation to matters of public interest and safeguard the fundamental value that is public participation in democracy.
25Public interest need not engage the entire community; it is enough if a segment of the community would have a genuine interest in the subject matter of the expression: Mazar v. Farooqi, 2020 ONSC 3490, at para. 34.
26In Chaudhary v. Shahid, 2023 ONSC 653, at para. 39, the court found that expression about concerns regarding management of funds raised for a charitable purpose was a matter of public interest.
27Similarly, in Bangash v. Patel, 2021 ONSC 7620, at para. 126, the court concluded that expression that seeks to promote transparency and accountability from (in that case, the leader of) a significant community religious centre is a generally worthy endeavour, deserving of protection. Such expression touches on the core values of truth-seeking, participation in institutional decision-making and accountability.
28The plaintiff has not seriously resisted a conclusion that the expression at issue relates to a matter of public interest.
29The financial expression at issue in this case raised concerns about financial and other improprieties at the temple — a community, religious and charitable organization — including money laundering, operating in an illegal fashion, membership recruitment irregularities, human rights violations in membership, and fraud.
30The cultural expression at issue raised concerns about institutional decision-making and the participation of, and accountability to, the temple’s Tamil population with respect to the temple’s treatment of issues involving Tamil nationhood and its relationship with the Sri Lankan consulate.
31The temple community had a genuine interest in both the financial expression and the cultural expression, each of which concerned the management and accountability of the temple. I thus conclude that the defendant has discharged his burden to establish that the impugned expression relates to matters of public interest.
Does the claim have substantial merit and does the defendant have no valid defence?
32In a better resourced court, I would address all of the factors that the parties put in issue. However, this court is facing a significant backlog and regrettably, must be parsimonious with its resources in order to attempt to keep the wheels of justice turning as best as possible. For that reason, I confine my reasons to only those issues necessary to determine the motion.
The Financial Expression
33For purposes of this analysis, I assume without deciding that the action has substantial merit.
34The defendant raises multiple defences. In these reasons, I focus on one: justification.
35A defendant relying on justification need not prove the truth of every word of the libel. It is enough if the defendant proves the substantial truth of the sting, or the main charge: Chaudhury, at paras. 48-49.
36As the court in Zhao v. Corus Entertainment Inc., 2020 BCSC 1533, at para. 79, quoting from Raymond E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, 2nd ed. (Toronto: Carswell, 1999) (loose-leaf updated 2013, release 1) volume 3:
The test is “whether the libel as published would have a different effect on the mind of the reader from that which the pleaded truth would have produced.” In other words, does the publication make the plaintiff significantly worse off than a literally true publication would have, or would the plaintiff have been exposed to any more opprobrium if the publication had been free from error? It must be “so misleading that it produces a different effect on a reader’s mind than would the truth”. If “the truth is so near to the facts as published that fine and shaded distinctions must be drawn and words pressed out of their ordinary usage to sustain a charge of libel, no legal harm has been done.”
37In this case, I have no hesitation concluding that there is good reason to believe the defence of justification would be made out at trial. The evidence on the record before me in fact proves that the sting of the alleged libel is substantially true.
38In the key part of the financial expression of which the plaintiff complains, the defendant states:
There have been “lots of illegal activities” in the temple, “like money laundering, membership irregularities, operating the temple in an illegal fashion, many other allegations like membership recruitment outside by the by-law. Human rights violation in membership”;
There have been “errors in the account, how financial fraud is done, how the illegal activities which is against the law of the country and city are conducted in the temple”;
He has received “direct evidence for such activities carried out within the temple”.
39The record reveals that events have transpired regarding the financial management of the temple that are very concerning.
40First, the record establishes that in 2012, approximately $20,000 in temple funds were handed over from the temple’s office in cash to two people, in exchange for six cheques totalling the exact same dollar amount. Three years later, in 2015, the temple began an “investigation” into the exchange, which I will call “cash for cheques”.
41The person chosen to conduct the “investigation” was a mechanic who had no training in accounting, bookkeeping or financial auditing. He reviewed the temple’s books, asked questions of the temple’s accountant on one occasion, and interviewed the temple’s office manager. There are no notes of the “investigation”. The investigator relied on the accountant’s representation that to the best of the accountant’s knowledge, the six impugned cheques were the only ones he could find.
42The two individuals who brought the cheques to the temple were identified, but never interviewed. The investigator determined, from his interview with the office manager, that the temple board knew that cash was being exchanged for cheques. The investigator produced a two-page report that indicated that the investigation was not complete. On this, he was correct. For example, no determination was made as to whose accounts the cheques were written on, or, more importantly, why they were exchanged for cash.
43The temple chose to end the investigation into the cash for cheques exchange. In oral argument, counsel for the plaintiff argued that, when the defendant referred in his statement to money laundering, he was not justified in doing so because no determination had ever been made that money laundering had taken place. The temple admits that the cash for cheques exchange was not normal, but resiles from a conclusion that the exchange was money laundering.
44We do not know for certain why cash was exchanged for cheques because the temple made no effort to determine the reason. One plausible reason why cash would be exchanged for cheques is to facilitate money laundering. One would have thought that the temple would have wanted to know if it had been improperly used to facilitate illegal activity like money laundering.
45The plaintiff’s counsel suggested that, having determined the temple was not out of funds, it was not reasonable for the temple to invest further resources in determining the reason for the cash for cheques exchange. However, the two people who brought in the cheques had been identified. There is no evidence to explain why simply asking them about what happened would have been onerous, or would have required resources out of proportion to what I would have thought would have been the practical and reputational concern that the temple was being used improperly to facilitate money laundering. Certainly, no legitimate purpose behind the cash for cheques exchange was advanced by the temple on this motion; it is hard to see what a legitimate purpose could be.
46Thus, while it is perhaps not strictly true that the temple had determined that the cash for cheques exchange was money laundering, is the temple worse off because the defendant used the phrase money laundering than if he had raised his concern in words that were more technically true? Had he said, “to the knowledge of the temple board, cash belonging to the temple was exchanged for cheques, and following a subsequent partial investigation, the temple board chose to end any further investigation into the reason for this abnormal financial transaction, although cognizant that one purpose of a cash for cheques exchange could be money laundering”, would the temple be worse off? I find it would not have been. In fact, the technical truth may be worse, because not only does it raise the spectre of money laundering or other illegal activity, it also raises the spectre of an entire board colluding to bury the issue.
47Second, the record reveals that even the temple believed that fraud had occurred in its financial operations. In 2016, in connection with an annual event of the temple known as “Joythi”, two temple members spent $43,000 in cash belonging to the temple for which they could not account. The temple initiated two small claims court actions, one against each individual. Both actions alleged unjust enrichment, embezzlement, breach of contract, failed fiduciary duty and breach of trust. The actions remain ongoing.
48At the hearing, counsel argued that the defendant’s reference to fraud in the financial expression carried a sting that was meaningfully worse than the embezzlement the temple believes took place. I note that the Merriam-Webster dictionary defines “embezzle” as “to appropriate (something, such as property entrusted to one’s care) fraudulently to one’s own use.”
49In my view, there is no meaningful difference between alleging that fraud had occurred at the temple and alleging that embezzlement had occurred. The temple itself seeks redress for embezzlement. The defendant’s expression about fraud was substantially true.
50Moreover, the defendant’s financial expression was supported by what he had been told by a former member of the temple’s board of directors, and by the documents that former member had provided to him. Although the plaintiff complains that the defendant did not raise the allegations with the temple board of directors first, he was not required to do so. In any event, his attempts to engage the temple on the issues relating to the cultural expression had been totally ignored, so he had little reason to believe the temple board would engage with him on the financial irregularities.
51The parties did not focus on the allegations of membership irregularities, but in any event, the true sting of the financial expression was that the temple had been involved in questionable, illegal, and fraudulent financial practices and impropriety. On the record before me, that has been proven true, and it is those allegations that form the sting of the expression.
52I thus conclude that the plaintiff has failed to prove that the defendant has no valid defence with respect to the financial expression. In other words, there are reasonable grounds to believe that justification is a valid defence to the allegation that the financial expression is libellous.
The Cultural Expression
53In the context of the cultural expression, which I describe below, I limit my analysis to the defence of fair comment.
54In Grant v. Torstar, 2009 SCC 61, at para. 31, the Supreme Court of Canada set out the elements of the defence of fair comment. It requires that:
a. The comment must be on a matter of public interest;
b. The comment must be based on the basic facts that go to the “pith and substance of the matter;”
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? and
e. Even though the comment satisfies the objective test, the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice.
55The defence of fair comment does not create a high threshold: James Bay Resources Limited v. Mak Mera Nigeria Limited, 2023 ONSC 6844, at para. 202. Comments must be read in their context, as reading impugned comments in isolation is unfair and of no assistance to the court in its analysis: Bangash, at para. 65.
56It is against these criteria that I weigh the cultural expression.
57The cultural expression the plaintiff complains of is contained principally in the first two Facebook videos made by the defendant. Both videos are fairly long, but the plaintiff identified for me the parts that it finds particularly concerning. Those parts are described below, together with some of the necessary context of the expression as a whole.
58In the first video, the defendant described in great detail what happened with respect to the karthikaipoo incident. He also described the 2019 incident regarding the invitation of a representative of the Sri Lankan consulate to the temple. Of particular concern to the plaintiff, after asking why the temple was fearful of a foreign government, he stated “an organization as such has an infiltration of a foreign government needs to be rectified otherwise it will have negative impacts on the community.” I note that, in the same communication, he stated that he wanted to make it clear that “not all the members of the board” were engaged in the conduct he complained of.
59In the second video, the defendant references his first video, in which he told his “side of the story,” and mentions the statement released by the temple regarding the incident. He disclosed that he had received a trespass notice, and could no longer attend the temple. He expressed his view that the conflict is not about him as an individual, but “a battle against the community”. He stated that “only some of them in this temple” are against Tamil nationalism, and named the individuals, who are the president and secretary of the temple board. He described his concern clearly when he stated:
The management is ready to give all the respect to the ones who were involved in genocide and murders, ready to welcome them with tray and betel whereas the same board of members declined to honour the martyrs who had sacrificed their valuable life for the sake of Tamil Nationalism, ridiculing those freedom fighters, and the cause of their struggle by not honouring the flower which they worship [the karthikaipoo].
60Of concern to the plaintiff, shortly after the statement quoted above, the defendant said that “a big organization in the Toronto area [the temple] is overtly supporting the Sri Lankan government is a great victory to the Sri Lanka government [sic]”. Speaking of the president and secretary of the temple board, he stated, “These two individuals are their [the Sri Lankan government’s] agents to implement their agenda…”
61The defendant exhorted the community to work against “such agenda”, and asked the temple to release video footage it claimed to have of the karthikaipoo incident so that the “public can see all that happened in that video and would come to a conclusion and their side of the judgment and if they decide Karthik has made a mistake, and he has done something unnecessary and brought a bad reputation to the temple, if the people/public decide as such I am prepared to make a public apology in front of the people…”
62The plaintiff objects to the characterization of the temple as having been “infiltrated” by agents of the Sri Lankan government.
63Considering the criteria for the fair comment defence, first, I have already found that the cultural expression is on a matter of public interest.
64Second, the cultural expression is based on the basic facts that go to the pith and substance of the matter, that is, the temple’s approach to issues involving Tamil culture and nationhood, and the Sri Lankan government. In particular, the expression is based on the karthikaipoo incident, the temple’s response to the karthikaipoo incident, the 2019 invitation to the representative of the Sri Lankan consulate, and later offering to the Sri Lankan Consulate General.
65Third, in my view, taking each communication as a whole, it cannot be said that the defendant stated, as a fact, that agents of the Sri Lankan government were running the business of the temple. Rather, the cultural expression is better understood as the defendant’s comment that the two members of the temple’s board of directors were not sufficiently supportive of Tamil nationhood and were too deferential to the Sri Lankan government, and that his opinion was that their viewpoints were negatively impacting the temple.
66Fourth, I find that the comment satisfies the objective test. A person could honestly express the defendant’s opinion on the proved facts. The interest that the events generated among the temple community, and the protests that followed bolster my conclusion.
67Finally, although the plaintiff has alleged malice, there is no evidence to support that allegation. The plaintiff claims that the defendant was upset because the temple stopped purchasing flowers from the defendant’s floral shop. This is the plaintiff’s speculative theory only.
68The actual words of the defendant tell a different story. In his videos he indicated that he wanted to sort the conflict out with temple management rather than engaging with the media which had approached him. However, his attempts to engage the temple’s board to discuss the karthikaipoo dispute went unanswered. He also cautioned listeners that the actions taken by the community ‘should not have any impact on the temple,” and he specifically recognized the temple to be an important part of the community. He stated, “[t]his temple should not be labeled due to some individuals. The income generated to this temple should not be stopped. If income is ceased then the devotees and younger generation who go to this temple and our community would be indirectly affected.”
69In his second video, he explains why he felt the need to engage in the expression:
I wanted to tell another thing, after this letter was released lot of people put their comments and it was erased. Later I found the comments section was turned off. It clearly indicates that they don’t want to leave or let space for the people for consultation or discussion. Everyone knows that a temple, public/common temple, temple for the people, it should be always in a position to discuss the right and the wrong with accountability and should be transparent.”
70The record demonstrates that the defendant was correct. Throughout, the temple has sought to guard closely its workings from its members and devotees. Directors are required to sign confidentiality agreements. There has been no transparent disclosure of financial affairs, and, as I have already noted, the board took steps to stop investigations into questionable activities. The temple’s own witness complains of information about the 2019 invitation to the representative of the Sri Lankan government being “leaked”. The temple refused to engage with the defendant at the outset of the karthikaipoo dispute constructively, and then it refused to engage at all. When the defendant stated that the temple did not want to leave space for consultation or discussion among its community, he was accurately describing the state of affairs.
71The evidence does not support a conclusion of malice. To the contrary, it supports a conclusion that the defendant cares deeply about the temple and its role in the community, and used his expression to speak out on matters important to the community that the temple was actively trying to suppress. This lawsuit is another tool employed by the temple to try to suppress the discussion the defendant was trying to provoke.
72None of this is to say that the defendant’s position on the karthikaipoo or the temple’s stance vis a vis the Sri Lankan government was right or wrong. That is not the question before me. I confine myself to the conclusion that the defendant was not motivated by malice. To the contrary, he was motivated by concern for an institution he held dear.
73I thus find that the plaintiff has failed to prove that there are no reasonable grounds to believe that the defence of fair comment is a valid defence to the plaintiff’s allegations about the cultural expression.
Expression about Violence at the Protest
74While not the main focus of the plaintiff’s submissions, the plaintiff also complains about the defendant’s statement regarding the protests outside the temple, so I address it here briefly. The defendant stated that he was not directly involved in the picketing, but that he was observing the way the protestors, whom he referred to as “younger brothers” (using a term the translator indicates means “junior in age to” the defendant) were protesting. He said he observed, “how the management deals with this protest. They sent some rowdy to those children and beat them up who were protesting…”
75First, the defendant’s speech regarding the protests was on a matter of public interest, in that it focused on the temple’s response to the protests, how the temple engaged with its community and how it dealt with dissension among its population.
76Second, in my view, there is no “sting” to this alleged libel. The audience who heard the video (which was recorded in Tamil) would have been aware of the protests and the fact that the protestors were comprised of youth from the temple community. Videos of the protests and the violence were on the social media platforms the community was using to share information about the conflict, just as were the defendant’s statements. Moreover, the use of the term “younger brothers” makes it clear that the protestors were younger than the defendant, who was in his early thirties at the time of the expression. Thus, I find that third persons who heard this expression would not have concluded that the temple was sending out thugs to beat children. Rather, they would have understood that younger members of the temple were protesting, and some violence had occurred instigating by temple supporters.
77Third, the videos of the protest demonstrate that people from the temple were physically violent with the protestors. The understanding the third persons would have had from the defendant’s expression about the violence at the protest would have been consistent with the events recorded on video.
78The plaintiff has thus failed to discharge its burden with respect to the expression about the violence at the protest. Moreover, it has failed to prove that there are no reasonable grounds to believe that justification or fair comment would not be valid defences.
Seriousness of the Harm
79I have already noted that this court is without the luxury of sufficient resources to develop every issue argued by the parties. For example, I have not engaged in an analysis of the other defences the defendant argues applies to the expression in this case.
80However, I will add brief comments about the question of the seriousness of the harm.
81First, there is next to no evidence in the record of quantifiable harm resulting from the defendant’s expression. There is some suggestion that fewer people have booked the temple for events, but the suggestion is bald.
82More to the point, however, even assuming a case for harm can be made out by the temple, I conclude that the true purpose of this action is not to address harm, but to silence the defendant, and more importantly, silence discussion about the issues the defendant has raised. I explained this is greater detail, above, when I explained why I decline to give effect to the plaintiff’s allegation that the defendant was motivated by malice.
83I see no serious harm caused by the defendant’s expression to the temple. Any harm to its reputation is the result of its own behaviour, or the financial irregularities it has permitted to take place within the temple organization. On the other hand, I find that there is a strong public interest in protecting the defendant’s expression.
84Thus, were it necessary to consider whether 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, I would find in favour of the defendant and dismiss the action on that basis.
Costs
85The only matter remaining is costs. The parties each uploaded their bills of costs and agreed that I would proceed to determine costs after writing my reasons on the merits without the need for further submissions. That is the process I have followed.
86The three main purposes of modern costs rules are to indemnify successful litigants for the costs of litigation, to encourage settlement, and to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan (1999), 46 O.R. (3d) 330, at para. 22.
87Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act. The court exercises its discretion taking into account the factors enumerated in r. 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, including the principle of indemnity, the reasonable expectations of the unsuccessful party, and the complexity and importance of the issues. Overall, costs must be fair and reasonable: Boucher v. Public Accountants’ Council for the Province of Ontario (2004), 71 O.R. (3d) 291, at paras. 4 and 38. A costs award should reflect what the court views as a fair and reasonable contribution by the unsuccessful party to the successful party rather than any exact measure of the actual costs to the successful litigant: Zesta Engineering Ltd. v. Cloutier, 2002 CarswellOnt 4020, 118 A.C.W.S. (3d) 341 (C.A.), at para. 4.
88There are special legislative provisions that impact costs awards in motions brought under s. 137.1. Under s. 137.1(7) of the Courts of Justice Act, when a judge dismisses a proceeding under s. 137.1, “the moving party is entitled to the costs on the motion and in the proceeding on a full indemnity basis unless the judge determines that such an award is not appropriate.”
89When deciding how a judge should exercise her discretion under s. 137.1(7), she will be “guided by the considerations that guide the exercise of discretion with respect to costs in other civil proceedings,” including the factors set out in r. 57.01, and the overriding objective that the award be fair and reasonable: Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686, at para. 63.
90I note that the legislation is designed to encourage defendants to make use of s. 137.1. When a defendant is not successful in dismissing an action under s. 137.1, the presumption is that the plaintiff will not be awarded costs on the motion: Kam v. CBC, 2021 ONSC 2537 at para. 6, citing Defamation Law in the Internet Age (Final Report) (Toronto: Law Commission of Ontario, 2020), at p. 52.
91The policy behind these costs provisions is to discourage large and powerful plaintiffs from using litigation to shut down public debate, and to encourage counsel to take on the defence of defamation actions where the vulnerable defendant would be unlikely to be able to pay: Niagara Peninsula Conservation Authority v. Smith, 2018 ONSC 127, at para. 12.
92In B.W. (Brad) Blair v. Premier Doug Ford, 2021 ONSC 695, at para. 3, Belobaba J. held that a full indemnity costs award was not appropriate although he had dismissed the plaintiff’s proceeding under s. 137.1, because the plaintiff’s defamation action was not a SLAPP suit. He noted that the plaintiff was not a large and powerful entity that was using litigation to intimidate a smaller and more vulnerable opponent and silence their public expression. In Kam, at para. 8, Papageorgiou J. relied on Belobaba J.’s analysis in support of her decision not to award full indemnity costs in a proceeding dismissed under s. 137.1.
93In this case, I find that the plaintiff’s action is a SLAPP suit. The plaintiff may not be a large and powerful entity, but it is larger and more powerful than the defendant, certainly amongst the relevant community, and it has used this litigation to attempt to intimidate the defendant and silence his public expression.
94I can see no basis on which to exercise my discretion to make an award of costs other than that set out in s. 137.1(7). In other words, the defendant is entitled to his reasonable full indemnity costs of the motion.
95The defendant’s full indemnity costs, including HST, are $64,952.97, and his disbursements are $8,816.15, for a total of $73,769.12. The plaintiff’s all-inclusive full indemnity costs are $56,928.18.
96This motion was relatively complex, and was very important to both parties. While the defendant’s costs are higher than the plaintiff’s costs, the difference in fees is about $12,000. The defendant, as moving party, bore the bigger burden. Counsel’s hourly rate is reasonable, and in my view, the time spent was also reasonable, having regard to the number of the issues argued (many of which I did not address in these reasons) and the quality of the work, which was very high.
97In the result, I conclude that the plaintiff shall pay the defendant’s full indemnity costs fixed at $73,769.12, all inclusive, within thirty days.
Conclusion
98For the reasons above, I grant the defendant’s motion and dismiss this action under s. 137.1 of the Courts of Justice Act. The plaintiff shall pay the defendant’s all-inclusive full indemnity costs fixed at $73,769.12 within thirty days.
J.T. Akbarali J.
Date: January 29, 2024