Court File and Parties

COURT FILE NO. : CV-23-00703540-0000 DATE : 20240503 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: FAIRMONT ROYAL YORK OPERATIONS LP, and ACCOR S.A. Plaintiffs/Responding Parties

AND:

TORONTO HOSPITALITY EMPLOYEES UNION – CSN, CONFEDERATION DES SYNDICATS NATIOINAUX (CSN), DAVID SANDERS and ASHLEY HAYES Defendants/Moving Parties

BEFORE: Justice Chalmers

COUNSEL: D. Charach and D. Moholia, for the Plaintiffs F. Yu and S. Dales, for the Defendants

HEARD: April 24, 2024, by videoconference

REASONS FOR DECISION

OVERVIEW

[1] The Defendants bring this motion under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “Act”) to dismiss the action on the basis that it unduly limits their freedom of expression on matters in the public interest.

[2] The Plaintiffs, Royal York Operations LP and Accor S.A. bring this action alleging that the press release issued by the Defendants on June 24, 2023, (the Press Release) was defamatory. The Press Release provides inter alia, that on the eve of the Pride Weekend in Toronto, Royal York hotel managers required its employees to remove union Pride pins from their uniforms. This gave the impression to a reasonable reader of the Press Release that the Plaintiffs did not support Pride or the LBGTQ+ community. The Plaintiffs allege that the Press Release was factually inaccurate, one-sided, and lacked important context. The Defendants argue that the Press Release was true or substantially true and was an expression in the public interest. The Defendants further argue that the Plaintiffs’ action is a strategic attempt to stifle union advocacy and public debate.

[3] For the reasons that follow, I dismiss the Defendants’ motion.

FACTUAL BACKGROUND

[4] Fairmont Royal York LP operates the Royal York Hotel (the Hotel) in Toronto. Accor S.A. is Fairmont’s parent company.

[5] The certified bargaining agent for 838 employees of the Hotel is Unite Here Local (UHL) 75. The employees who are represented by UHL 75 are referred to as the General Unit. The Toronto Hospitality Employees Union (THEU) is the certified bargaining agent for approximately 48 employees, most of whom are either hosts or front desk workers. Some employees who are part of the General Unit are also THEU members.

[6] THEU began organizing among the Hotel staff in 2022. THEU takes the position that shortly after it became active at the Hotel, Fairmont management took actions to counteract THEU’s activity. In the ten months prior to this action being commenced THEU initiated 5 unfair labour practice complaints against Fairmont. There is currently no collective agreement between THEU and Fairmont. THEU states that on May 10, 2022, members of the General Unit voted to displace UHL 75 and be represented by THEU. The outcome of the vote is pending because of a dispute regarding the validity of a portion of the ballots.

[7] Fairmont has a Grooming and Appearance Policy which provides that employees may wear approved nametags and/or pins. Although there is no collective agreement with THEU, Fairmont has permitted certified THEU-CSN members to wear certain pins (CSN pins) as long as they do not interfere with the overall appearance of the employee’s uniforms. The Hotel took the position that the General Unit members were not permitted to wear the CSN pins because they were represented by the UHL 75 bargaining agent. The issue of whether General Unit members are entitled to wear CSN pins is currently before the Ontario Labour Relations Board (OLRB).

[8] On June 1, 2023, Hotel employees were asked to remove CSN pins. The Hotel took the position that the 7 cm pins were too large. There had been no prior approval of the larger pins. Employees were told they could wear the smaller (3 cm) pins to support THEU-CSN. If the employees did not remove the larger pins they would be asked to leave and would not be paid for the remainder of their shift.

[9] Between June 1 and June 23, 2023, there were several instances of General Unit members wearing the CSN pins. Those employees were asked to remove the CSN pins because they were not certified THEU members. Some of the employees refused to remove the pins. Those employees were asked to leave and were not paid for the remainder of their shift.

[10] Prior to June 23, 2023, David Cooper, a doorperson at the Hotel, and a certified member of the General Unit proposed to Ashley Hayes, the secretary-treasurer of the THEU, that CSN pins with the Pride rainbow be distributed to Hotel employees. Ms. Hayes added Pride themed tape to the small 3 cm CSN pins. The pins were made available to all Hotel employees.

[11] Ms. Hayes and David Sanders, a union organizer and advisor with the THEU, understood that Hotel management may ask the employees who were not certified THEU members to remove the CSN Pride pins. In the e-mail message between Mr. Sanders and Mr. Cooper on June 22, 2023, Mr. Sanders advised that if asked to remove the pins, Mr. Cooper should defy.

[12] On June 22, 2023, Mr. Sanders also sent a text to Iain Philips, a colleague of Mr. Cooper in which he states that if Hotel management insist on employees removing the CSN Pride pin that “we will announce publicly that Fairmont forced people to take their Pride pins off – to the press.” In a second text, Mr. Sanders wrote to Mr. Phillips, “If management makes then (sic) take them off – press release about Fairmont Accor doing that on the Eve of Pride weekend.” Mr. Phillips responded, “Luv it”.

[13] On June 23, 2023, some of the Hotel employees who were members of the General Unit and employees who were certified THEU members wore the CSN Pride pins. Hotel approached the General Unit employees who wore the pins and requested that the pins be removed. The Hotel encouraged General Unit members to wear a UHL 75 Pride themed pin, or non-union Pride pin. No certified THEU members were asked to remove their CSN Pride pins.

[14] This was confirmed by Mr. Sanders in his cross-examination. He stated that the employees for whom the THEU was their certified bargaining unit were not asked to remove the CSN Pride pin. He testified as follows:

Q. 201 – Okay. And to your knowledge, the only employees that were asked to remove the CSN Pride pins on June 23, 2023, were employees where THEU was not their certified bargaining agent, is that right?

A. – Yes.

[15] Teslime Karasan, who was an employee of the Hotel, and an organizer with THEU also confirmed in cross-examination that she was not aware of any employees who were certified members of THEU that were asked to remove the CSN Pride pin. Ms. Karasan testified as follows:

Q. 324 - Okay. And so just to be clear from that perspective. So, you and the other employees who were officially a part of THEU were allowed to express your affiliation with THEU and with Pride, by wearing those [CSN Pride] pins?

A. - Yes, we were.

Q. 325 – And did you also notice some colleagues that day who were a part of the Unite Here Local 75 wearing Unite Here Local 75 pins.

A. Yes. Like …. Yes.

[16] On June 24, 2023, the THEU issued the Press Release. The Press Release was drafted by Mr. Sanders. The Hotel was not asked for its comments before it was issued. The Press Release reads as follows:

ON EVE OF TORONTO PRIDE WEEKEND, FAIRMONT ROYAL YORK MANAGERS DEMAND THAT EMPLOYEES REMOVE UNION PRIDE PINS FROM THEIR UNIFORMS

THREATENS TO SEND EMPLOYEES HOME WITHOUT PAY IF THEY DO NOT COMPLY

On Friday afternoon, as Toronto Pride Weekend 2023 was getting underway, Fairmont Royal York managers began approaching employees wearing union pins with the pride rainbow and demanding that they remove them from their uniforms. Managers informed employees that they would be sent home without pay if they refused to remove the pin.

The action follows Fairmont Royal York management sending all of the hosts working at the hotel’s restaurants and bars home without pay last June 1st for refusing to remove another union pin on that day. The union – the Toronto Hospitality Employees Union/CSN – alleges that Fairmont Royal York management’s actions violate the rights of the workers at the hotel.

LGBTQ2S+ members of the union subsequently proposed that employees assert their rights over Pride Weekend by wearing their union pin with the Pride Rainbow. Again, management demanded people remove their pins or be sent home without pay.

A complaint has already been filed at the Ontario Labour Relations Board for the incident on June 1. The union will be following this up with an additional complaint dealing with Friday’s actions by Fairmont/Accor management.

The parent company of the Fairmont Royal York, Paris-based Accor S.A., only recently in 2021 added ‘LGBTQ+ inclusion’ as a “new pillar of their Diversity, Equity & Inclusion Strategy.”

“Pride Weekend in Toronto is about expressing yourself free from any kind of fear or intimidation.”, says Ashley Hayes, Secretary-Treasurer of the union. “I just don’t understand why Fairmont Royal York management cannot let their workers express themselves. I would think they would celebrate this.”

The THEU-CSN is currently in negotiations for a first collective agreement for the hosts and the front desk workers at the iconic Toronto hotel who voted overwhelmingly to unionize last year.”

[17] The Press Release was subsequently republished in several local media sources. On June 24, 2023, Mr. Sanders and Ms. Hayes reached out to contacts at CBC, Bell Media and the Globe and Mail to tell them about the Press Release. Some of those news outlets reached out to Fairmont.

[18] On June 28, 2023, Mr. Sanders sent an e-mail in which he stated that UHL 75 and Fairmont were “really freaking out about the press around the pride pins”. In the fall of 2023, THEU distributed a pamphlet which provides that the Hotel demanded workers remove CSN union Pride buttons on the eve of Pride Weekend.

THE ISSUES

[19] The issue to be determined on this motion is whether the Plaintiffs’ action should be dismissed in its entirety pursuant to s. 137.1 of the Act. To make this determination it will be necessary to address the following sub-issues:

i) The Threshold Burden - Have the Defendants established that this proceeding arises from an expression that relates to a matter in the public interest?

ii) The Merits-Based Hurdle - Have the Plaintiffs established that there are grounds to believe that the claim has substantial merit and there are no valid defences? and

iii) The Public Interest Hurdle - Have the Plaintiffs established that the harm that the Plaintiffs are likely to suffer, or have suffered, because of the expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression?

[20] I will also address the issue of the costs of the motion.

ANALYSIS AND DISCUSSION

The Test on an Anti-SLAPP Motion

[21] The anti-SLAPP s.137.1 motion is an early screening mechanism to weed out meritless lawsuits that are strategically launched to unduly limit expression on matters of public interest. The motion is designed to strike a balance to ensure abusive claims do not proceed but that legitimate claims are permitted to continue: Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, 165 O.R. (3d) 753 (“Park Lawn (ONCA)”), at para. 1.

[22] The process is intended to be “efficient and economical”: Park Lawn (ONCA), at paras. 33, and 38. The s.137.1 motion is not to slide into a de facto summary judgment motion. If the record raises serious questions about the credibility of the affiants, the motion judge must avoid taking a “deep dive” into the merits of the claim: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587 (Pointes Protection), at para. 52.

[23] The Defendants have the initial onus of establishing that the underlying proceeding is causally related to the Defendants’ expression and the expression relates to a matter in the public interest. This is known as the threshold burden.

[24] If the Defendants meet the burden, the onus shifts to the Plaintiffs to demonstrate that the lawsuit has substantial merit and there are no valid defences. This is known as the merits-based hurdle. If the Plaintiffs satisfy this burden, the action continues to be subject to summary dismissal unless the Plaintiffs establish that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. This is known as the public interest hurdle: Hansman v. Neufeld, 2023 SCC 14, 481 D.L.R. (4th) 218, (Hansman) at para. 53.

The Threshold Burden - Was the Impugned Expression in the Public Interest?

[25] In determining whether the expression is on matters of public interest, the court is to apply a “broad and liberal interpretation”. The inquiry is a contextual one that asks what the expression is really about, and whether some segment of the community has a genuine interest in receiving information on the subject. The threshold burden is not an onerous one: Pointes Protection, at paras. 24, and 28.

[26] The Plaintiffs concede that the Press Release relates to a matter in the public interest.

The Merits Based Hurdle - Does the Claim have substantial merit and there are no valid defences?

[27] The second stage of the inquiry requires the Plaintiffs to show grounds to believe the claim has substantial merit and that there are no valid defences.

[28] The second stage of the inquiry is not a determinative adjudication of either the merits of the claim or the existence of a defence. The motion judge is to engage only in “limited weighing of the evidence and should defer ultimate assessments of credibility and other questions requiring a deep dive into the evidence to a later stage, where judicial powers of inquiry are broader and pleadings more fully developed”: Pointes Protection, at para. 52.

[29] The Plaintiffs must satisfy the court that there are “grounds to believe” that its underlying claim is “legally tenable and supported by evidence that is reasonably capable of belief such that the claim can be said to have a real prospect of success”: Pointes Protection, at para. 54. The potential success of the Plaintiffs’ case must be more than a possibility or arguable case: Park Lawn (ONCA), at para. 18. However, any basis in the record and the law will be sufficient to meet this standard: Bent v. Platnik, 2020 SCC 23, (Bent) at para. 88. The burden on the Plaintiffs to meet the merits-based hurdle is not a high one: Mondal v. Kirkconnell, 2023 ONCA 523, (Mondal) at para. 57.

Have the Plaintiffs established that the action has substantial merit?

[30] To succeed in a claim of defamation, the Plaintiffs must establish the following:

1. The Defendants published the words complained of, to at least one person;
2. The words complained of refer to the Plaintiffs;
3. The impugned words are defamatory in that the words would tend to lower the Plaintiffs’ reputation in the eyes of a reasonable person; and
4. That a reasonable person would have understood the words in a defamatory sense: Kam v. CBC, 2021 ONSC 1304, at para. 3, aff’d 2022 ONCA 13.

[31] Here, it is not disputed that the Defendants published the Press Release. It was posted on the THEU’s Cision portal and is accessible publicly on the internet. Mr. Sanders and Ms. Hayes also sent the Press Release directly to various media outlets.

[32] It is also not disputed that the words complained of refer to the Plaintiffs.

[33] With respect to the third and fourth elements I must determine:

a. Whether as a matter of law, the published words are capable of bearing the defamatory meanings alleged by the Plaintiffs; and if so,

b. Whether a reasonable person would have understood the words in their defamatory sense: Kam v. CBC, 2021 ONSC 1304, at para. 28.

[34] The court must consider the publication as a whole. Context is critical. Words that may not be defamatory when viewed alone may take on a defamatory meaning when the cumulative effect is viewed in context: Kam v. CBC, supra, at para. 42, quoting with approval Brown on Defamation at 5.3(1)(a).

[35] The Plaintiffs argue that the Press Release was drafted in such a way so as to leave a reasonable reader with the impression that the Plaintiffs do not support Pride or the LGBTQ+ community. The Press Release focuses on the fact that Hotel management asked their employees to remove Pride pins on the eve of Pride Weekend. The Press Release states that Accor, Fairmont’s parent company “only recently … added ‘LGBTQ+ inclusion’ as a ‘new pillar of their “Diversity, Equity & Inclusion Strategy”. This statement is immediately followed by the quote attributed to Ms. Hayes that “Pride Weekend … is about expressing yourself free from any kind of fear or intimidation…. I just don’t understand why Fairmont Royal York management cannot let their workers celebrate themselves. I would think they would celebrate this.”

[36] The Defendants argue that the Press Release is focused on union and employer issues and not on Pride Weekend. The Defendants state that they were careful to state that the pins were “union Pride pins”. The Press Release also references the earlier incident on June 1, 2023, which involved the Hotel asking employees to remove union pins. The earlier event had nothing to do with Pride.

[37] I am of the view that when viewed in context, a reasonable person may have understood the Press Release to mean that the Hotel was not allowing employees to express support for the Pride Weekend or the LGBTQ+ community. A reasonable person may also interpret the Press Release that states that Accord “only recently” added LGBTQ+ to their diversity strategy as meaning that Accord was slow to affirm support for the LGBTQ+ community.

[38] I am also satisfied that a reasonable person would have interpreted the Press Release in a defamatory manner. An interpretation of the Press Release that the Plaintiffs do not support Pride Weekend or the LGBTQ+ community would tend to lower the reputation of the Plaintiffs in the community. I am of the view that it is self-evident that an employer that did not permit its employees to express support for Pride Weekend or was not supportive of the LGBTQ+ community will tend to be lowered. This point is recognized by Mr. Sanders who testified in cross-examination as follows:

Q 561 – And you understood in June 2023, that any insinuation that Fairmont or Accor was discriminating against members of the LGBTQ+ community would be damaging to their reputation, right?

Q. 563 I am not asking about what you were thinking about at the time. Just your general understanding then and now ….

A. Yes.

Q564 … if there is any insinuation, public insinuation ….

A. I would hope that it would be damaging to any institution that did that.

Q. 565 Of course, right?

A. Yes.

Q. 566 That is self-evident.

A. Yes.

[39] I am satisfied that the manner in which the Press Release was worded could lead a reasonable person to believe that the Plaintiffs are not supportive of Pride Weekend or the LGBTQ+ community. I am satisfied that the Plaintiffs have established that the defamation action has substantial merit.

Have the Plaintiffs established that there are grounds to believe that the Defendants have no valid defences?

[40] The Plaintiffs must also establish that the Defendants do not have any valid defences to the action. If there is any valid defence, the Plaintiffs will not have met their burden: Pointes Protection, at para. 58.

[41] It is not necessary for the Plaintiffs to prove that there is no possibility that the defence will succeed. The Plaintiffs are only required to establish that there are “grounds to believe” that the Defendants have no valid defence. The grounds to believe standard is less onerous than the balance of probabilities and requires the Plaintiffs to show that there is a basis in the record and the law, taking into account the stage of litigation, to support a finding that the defences, “do not tend to weigh more in the defendants’ favour”: Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 26, 455 D.L.R. (4th) 525, at paras. 52, 53, 56 and 57 and Mondal, at paras. 9 and 51. It is not necessary for the Plaintiffs to establish that the defences would inevitably fail.

[42] In oral argument, the Defendants primarily advanced the defence of justification. The Defendants also raise the defences of qualified privilege and fair and responsible comment.

Truth or Justification

[43] To succeed on a defence of justification, a defendant must adduce evidence that the expression was substantially true. The defence of justification will fail if the publication is shown to have contained accurate facts, but the “sting” of the libel is not shown to be true. Partial truth is not a defence: Bent, at para. 107.

[44] The Defendants state that the content of the Press Release is true. It is undisputed that the Hotel management asked employees to remove union pins that had the Pride rainbow logo, on the eve of Pride Weekend. The Plaintiffs argue that when viewed in context, the implication that Hotel management did not allow employees to express support for Pride Weekend or the LGBTQ+ community is untrue.

[45] Fairmont did not prevent employees from wearing Pride pins on Pride Weekend. Only those employees whose certified bargaining unit was not CSN were asked to remove the CSN Pride pins. CSN employees were not asked to remove the Pride pins. The employees represented by UHL 75 were permitted to wear UHL 75 pins with the Pride rainbow logo. I am of the view that the statement attributed to Ms. Hayes in the Press Release that she does not understand why Fairmont Royal York management cannot let their workers express themselves about Pride, is not truthful or accurate.

[46] The statement attributed to Ms. Hayes was drafted by Mr. Sanders. She was satisfied that the statement was something she would have said and agreed to have the statement attributed to her. Mr. Sanders testified on his cross-examination that he knew the Hotel was not preventing all employees from wearing Pride pins or were not allowing employees to express support for Pride Weekend.

Q 194 - And we mentioned the CSN Pride pins and you know that there were members of THEU, and when I say members in this instance, I mean members for whom THEU was their certified bargaining agent. So, part of the post unit or the front desk unit. Some of those members were wearing the CSN Pride pins?

A. Yes.

Q. 195 - Okay. And you saw of them, right?

A. Yes.

Q. 196 - And those workers were not asked to remove that CSN Pride pin?

A. Not to my knowledge.

Q. 197 - Okay. So you agree?

A. To my knowledge they were not asked to remove them.

Q. 568 - And Fairmont and Accor, to be clear, in June 2023, it is not your position that they were discriminating against the LGBT+ community, right?

A. That is correct.

Q. 569 - Okay. And so, any insinuation that they were discriminating against the community would be incorrect?

A. Yes.

Q. 572 - Okay. And so, you know, and you knew in June 2023, you knew that the reason that the managers at the Fairmont were asking members of the general unit to remove the CSN Pride pin was because it had CSN on it, not because it had any Pride colours on it?

A. Yes.

Q. 613 - Okay. And so, if the implication of that paragraph of Ms. Hayes quotation, if the implication that someone takes from that is that Fairmont Royal York management does not let their employees express their affiliation with Pride, that would be the wrong implication, you agree?

A. That would be the wrong implication.

Q.614 - Right, because that wouldn’t be true?

A. Yes. Not to my knowledge, and I would hope not. [….]

[47] Based on the evidence submitted on this motion, I am of the view that the Plaintiffs have established that the insinuation in the Press Release that the Plaintiffs were not permitting its employees to wear Pride pins or to express support for the LGBTQ+ community was not true or justified.

[48] I am satisfied that the Plaintiffs have established that there are grounds to believe that the Defendants have no valid defence of justification.

Qualified Privilege

[49] Qualified privilege applies if the communication is fairly made by a person in the discharge of some public or private duty and the recipient has a corresponding interest or duty to receive it. The defence of qualified privilege can be defeated by a finding that the dominant motive for publishing the statement is malice, or where the limits of the duty or interest of the speaker have been exceeded: Bent, at para. 121.

[50] Here, the Press Release was published on social media and is widely available on the internet. Qualified privilege will be defeated if the information is communicated to an inappropriate or excessive number of people. As noted in Canadian Standards Association v. P.S. Knight Co. Ltd., 2019 ONSC 1730, publication by internet is “rarely treated as necessary or reasonable”: at para. 58.

[51] In Rubin v. Ross, 2013 SKCA 21, the Saskatchewan Court of Appeal held that publication by internet may be proper and reasonable if there are some limits or restrictions on access. The court was considering the use of the internet for circulation of information to the union membership. The court noted that the “internet is not a tool that can be used to expand qualified privilege so as to justify the broad publication of a defamatory statement, but rather it exacerbates the libel”: para. 58.

[52] The Plaintiffs also argue that the Defendants’ conduct in releasing the Press Release was actuated by malice. There is a presumption of honest belief, however the presumption may be rebutted if the plaintiff proves “actual malice”: Whitehead v. Sarachman, 2012 ONSC 6641, at para. 45.

[53] Malice is not limited to spite or ill-will and may be established by showing that a comment was made with an indirect motive or ulterior purpose, or if the defendant was not acting honestly when the comment was published: Levant v. Stirling, 2022 ONSC 3608, at para. 60.

[54] The Defendants argue that the Press Release was to raise awareness of the union issues that were taking place at the Hotel. Ms. Hayes testified on her cross-examination that the Press Release was an advocacy tool to expose unfair labour practices. Mr. Sanders expressly denied that the Defendants acted maliciously in publishing the Press Release.

[55] I am of the view that the Defendants’ position that the Press Release was released to raise awareness of union issues is disingenuous. The Press Release is not limited to union issues, but instead focuses on the fact that the Hotel asked employees to remove Pride pins on the eve of Pride Weekend. The Press Release includes the statement attributed to Ms. Hayes that she cannot understand why the Hotel would not allow its employees to express themselves.

[56] As noted earlier in these reasons, there is evidence that Mr. Sanders knew when he drafted the Press Release that only General Unit members were asked to remove the CSN pins and that the Hotel permitted CSN members to wear the Pride pins. I am also of the view that the Press Release was drafted in such a way as to imply that the Plaintiffs did not allow their employees to express support for Pride. This was not a true statement and was known to be untrue by Mr. Sanders at the time he drafted the Press Release.

[57] There is also evidence on this motion that indicates that the Press Release may have been for an ulterior purpose; namely to embarrass the Plaintiffs to have them bargain with the THEU. Ms. Karasan testified on her cross-examination that as of June 23, 2023, one of the goals of THEU was to get Fairmont bargaining with them again. Mr. Sanders also admits that one reason behind the Press Release was to get Fairmont to bargain with THEU.

[58] Before the incident on June 23, 2023, Mr. Sanders wrote to Mr. Phillips and stated that if Fairmont forces employees to take their Pride pins off, we will announce publicly that Fairmont forced people to take off the pins on the Eve of Pride Weekend. The timing of the Press Release appears to be to maximize the embarrassment to the Plaintiffs.

[59] I am satisfied that there are grounds to believe that the Defendants acted with malice. Mr. Sanders knew when he drafted the Press Release that the Hotel was not preventing its employees from expressing themselves. I am also satisfied that there are grounds to believe that the Press Release was issued on the eve of Pride Weekend for the ulterior motive of embarrassing Fairmont to have it return to bargaining with THEU. A finding of malice will defeat the defence of qualified privilege.

Fair and Reasonable Comment

[60] The fair comment defence consists of four elements:

1. a comment on a matter of public interest;
2. based on fact;
3. which may include inferences of fact yet must be recognized as comments; and
4. could honestly be expressed as an opinion on the proven facts: Hansman, at para. 96.

[61] Malice will defeat the fair comment defence: Hansman, at para. 115.

[62] The statement in the Press Release attributed to Ms. Hayes was not drafted by her. It was drafted by Mr. Sanders. As noted earlier in these reasons, Mr. Sanders knew when he drafted the statement that the Hotel was permitting employees to wear pins that expressed support for Pride and the LGBTQ+ community. It is my view that the statement that workers were not allowed to “express themselves” was not an expression that could be honestly based on the facts. This finding would defeat the defence of fair comment.

[63] The defence of reasonable communication requires the following elements:

1. that the expression was on a matter of public interest and
2. the defendant published responsibly in that the defendant was diligent in trying to verify the allegations having regard to the relevant circumstances: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 SCR 640, (Grant), at paras. 95-97.

[64] In determining the diligence of the defendant, the court may consider whether the defendant sought out the plaintiff’s side of the story and the plaintiff’s position was accurately reported on. The court may also consider whether the statement was justifiable: Grant, at para. 126 (f).

[65] Here there is no evidence that the Defendants contacted the Plaintiffs to verify the allegations in the Press Release. In any event there was no need to verify the Plaintiffs’ position because the Defendants were aware that the response would have been that Fairmont supported Pride Weekend and the LGBTQ+ community and only asked General Unit employees to remove the CSN Pride pins.

[66] I am satisfied that there is a basis in the record that the Defendants did not fairly and thoroughly report the Plaintiffs’ position. This would defeat the defence of reasonable comment.

The Public Interest Hurdle - Does the public interest in permitting the proceeding to continue outweigh the public interest in protecting the expression?

[67] At the final stage of the analysis, I am required to weigh the harm to the Plaintiffs if the action is struck, against the harm to the public in limiting expression with respect to a matter in the public interest. The weighing exercise is the “crux” or “core” of the s.137.1 analysis. The open-ended nature of the weighing exercise allows the court to “scrutinize what is really going on in the particular case before them”: Pointes Protection, at paras. 18, 81 and 82.

[68] The Plaintiffs have the onus of establishing that the harm suffered by the Plaintiffs because of the Defendants’ expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the deleterious effects on expression and public participation: Park Lawn (ONCA), at para. 78.

Public Interest in Permitting the Proceeding to Continue

[69] The first part of the analysis is to determine the nature and extent of the harm to the Plaintiffs caused by the Defendants’ expression. The harm may be monetary or non-monetary harm such as an injured reputation. The determination of harm is made at an early stage of the proceedings and cannot be judged on an exacting standard. However, the Plaintiff must provide “evidence permitting an inference of likelihood in respect of harm and causation”: Mondal, at para. 75.

[70] The Defendants argue that there is no evidence of any harm to the Plaintiffs. They note that the Plaintiffs have been unable to point to a single cancelled hotel booking, or a single prospective hotel guest who did not make a booking they would have otherwise made because of the Press Release. The only evidence put forward by the Plaintiffs are some negative tweets from unverified accounts, two unpublished direct messages from a pseudonymous account, and three comments under a BlogTO post that were interspersed with positive comments. The Plaintiffs also put into evidence a hearsay complaint from an unidentified “VP with TD”, who was not happy about the Press Release. Finally, the Defendants argue that there was no harm to the Plaintiffs’ reputation because they had the opportunity to provide context and their side of the story to the press. The Defendants take the position that the harm identified by the Plaintiffs is de minimus.

[71] The Plaintiffs argue that they sustained damage to their reputations. Ms. Stewart sets out the reputational damage in her affidavit. She states that support for the LGBTQ+ community and Pride is extremely important to the Plaintiffs. Over many years, the Hotel has been involved in supporting the community. It has offered discounts to celebrate Pride Weekend and has made charitable donations to the LGBTQ+ community. It supports participation of its employees in the Pride parade. She deposes that the Press Release has, “significantly undermined the tremendous effort that has gone into establishing [Fairmont – Royal York Hotel] and Accor’s positive reputation and support of the 2SLGBTQ+ community.” The Plaintiffs also argue that the upcoming Pride Weekend in June 2024 will be the first Pride event following the Press Release and it is unknown at this time whether any bookings will be lost because of the Press Release.

[72] On an anti-SLAPP motion, I am not required to quantify the damages. It is only necessary to determine whether the reputational harm to the Plaintiffs is “sufficiently serious”.

[73] As noted in Pointes Protection, “reputation is one of the most valuable assets a person or a business can possess”: at para. 69. The harm to reputation does not always manifest itself in financial loss. The reputational impact of a false statement may be inferred: Montour v. Beacon Publishing Inc., 2019 ONCA 246, at paras. 28-35.

[74] As noted earlier in these reasons, I am of the view that it is self-evident that the reputation of an employer who did not permit its employees to express support for Pride Weekend or was not supportive of the LGBTQ+ community, would tend to be lowered. Here, there is evidence that the Plaintiffs had invested in building its reputation in the LGBTQ+ community and had actively supported Pride Weekend. Ms. Stewart testified that “brand reputation is paramount”.

[75] I find that the Plaintiffs have established that the allegations of reputational harm are “sufficiently serious”.

Public Interest in Protecting the Expression

[76] The quality of the expression and the motivation behind it are to be considered in determining whether there is a public interest in protecting the expression: Pointes Protection, at para. 74.

[77] The Defendants state that they issued the Press Release to show that there is a complex union dispute at the Hotel. They also argue that how employees are treated at a major Toronto hotel is a matter in the public interest and that this is part of an important public debate. The Defendants further argue that “what is really going on” is that Fairmont brought the lawsuit to “crush” the small labour union.

[78] The Plaintiffs argue that the Defendants orchestrated the situation involving the union pins. Before the employees were given the CSN Pride pins, Mr. Saunders stated that if employees are asked to remove the pins, they will issue a press release saying the Hotel told employees to remove union Pride pins on the eve of Pride Weekend. The Plaintiffs argue that this situation was created to bring pressure on the Plaintiffs to break the impasse in negotiations.

[79] It is my view that “what is really going on” is that the Defendants were attempting to embarrass and pressure the Plaintiffs by linking the management request to remove the pins to Pride Weekend. I expect that a press release that only referred to General Unit members being asked to remove CSN pins, without reference to Pride, would not have garnered as much interest.

[80] It is also my view that the Press Release was carefully worded by Mr. Sanders. Each individual word may be true or substantially true, however the Press Release was structured in such a way to give the impression to a reasonable reader that the Plaintiffs were not supportive of Pride or the LGBTQ+ community. This implication is not true. Mr. Sanders knew that such an implication is not true.

Weighing Exercise

[81] In weighing the competing interests, I have considered the quality of the Defendants’ expression and the motivation behind it. The Defendants put the Pride rainbow on the CSN pins and distributed the pins to all Hotel employees including the General Unit employees. The Defendants anticipated that the Hotel may request that the General Unit employees remove the pins. If so, the Defendants would issue the Press Release on the eve of Pride Weekend. I am of the view that the Press Release was drafted in such a way as to imply to a reasonable reader that the Plaintiffs do not support Pride or the LGBTQ+ community. This was intended to embarrass the Plaintiffs.

[82] I have also considered the effect the Press Release had on the Plaintiffs. The Plaintiffs had supported Pride Weekend and the LGBTQ+ community. Ms. Stewart deposed in her affidavit that this was extremely important to the Plaintiffs and that the Press Release undermined the effort that has gone into establishing its reputation. I am of the view that the Plaintiffs’ lawsuit is not a strategic lawsuit to shut down debate but instead is a legitimate action in defamation for damages arising out of a Press Release that provides the false impression that the Plaintiffs do not support Pride or the LGBTQ+ community.

[83] I conclude that the public interest in allowing the action to continue outweighs the public interest in protecting the expression. It is in the interests of justice to allow the Plaintiffs’ action to continue so it may be determined on its merits with a full record.

[84] The Defendants’ motion brought under s.137.1 of the Act is dismissed.

Are the Plaintiffs Entitled to Their Costs of the Motion?

[85] Section 137.1(8) of the Act provides that if the motion is dismissed, the responding party is not entitled to its costs on the motion, unless the judge determines that such a cost award is appropriate in the circumstances. Successful parties on the anti-SLAPP motion are presumptively not entitled to their costs of the motion.

[86] The Plaintiffs take the position that a cost award is appropriate in the circumstances. They argue that the Defendants acted with malice in issuing a Press Release that falsely implied that the Plaintiffs did not support Pride or the LGBTQ+ community. The Plaintiffs also state that they were required to incur significant costs to successfully respond to the motion. The Defendants argue that there are no exceptional circumstances that would justify departing from the presumptive rule that there be no costs awarded to the Plaintiffs.

[87] The policy for the presumption that successful plaintiffs are not entitled to costs, is to make anti-SLAPP motions accessible. The no-costs presumption is not to be set aside lightly: Sokoloff v. Tru-Path Occupational Therapy Services Inc., 2020 ONCA 730, at para. 40. However, the discretion to award costs against the unsuccessful defendant is generally available when there are “compelling facts” to justify the award: Veneruzzo v. Storey, 2017 ONSC 2532.

[88] In Teneycke v. McVety, 2023 ONSC 3428, the motions judge awarded costs to the plaintiffs. He found that there was malice underlying the publications and speeches made about the plaintiffs. In awarding costs to the plaintiffs, the motions judge stated as follows:

[7] Most typically, defendants and their lawyers put great effort into scoring this kind of early, total victory. In response, plaintiffs and their lawyers typically put considerable resources into responding to anti-SLAPP motions, as they have much – indeed, everything – to lose if they do not put their best foot forward. In the process, the court’s ruling on a motion of this nature reviews the factual and legal context of the claim quite thoroughly. While the motion court’s findings will not be definitive for trial down the road, they will inevitably impact on the course of the litigation and potential settlement.

[8] In my view, awarding costs to the Plaintiffs in these circumstances will go some way toward dampening not only these Defendants, but perhaps other defendants’ enthusiasm for taking the anti-SLAPP route where, as here, the factual context simply does not fit the SLAPP description. While costs are always broadly discretionary under section 131 of the CJA, the residual discretion left for the motion judge under section 137.1(8) is particularly appropriate to this context.

[89] I find that there is sufficient evidence in the record, to allow me to make a finding that the Defendants acted with malice in issuing the Press Release. Mr. Sanders knew when he drafted the Press Release that the Plaintiffs were not preventing Hotel employees from expressing support for Pride. He testified on his cross-examination that the Hotel management did not require CSN employees to remove the CSN Pride pin, yet he drafted the Press Release in such a way that the implication was that the Plaintiffs did not its employees to support Pride or the LGBTQ+ community. I am also satisfied that there is evidence to support the finding that the Press Release was issued on the eve of Pride Weekend for the ulterior motive of embarrassing the Plaintiffs to have them return to bargaining.

[90] It is my view that the finding of malice supports an award of costs in favour of the Plaintiffs.

[91] The Plaintiffs submitted a costs outline in which they claim costs on a partial indemnity basis, in the amount of $139,058.37 for counsel fee, $5,494.75 for disbursements and $18,791.91 for H.S.T. The total amount claimed is $163,345.03. The Defendants’ cost outline provides that if successful, the Defendants would have sought partial indemnity costs of $86,225.97 inclusive of counsel fee, disbursements, and H.S.T.

[92] In Park Lawn (ONCA), the Court of Appeal noted that the anti-SLAPP motion is “meant to be efficient and economical” and that as a guideline, the costs “should not generally exceed $50,000 on a full indemnity basis, although there will be exceptions and motion judges always have the power to award less, more or nothing as they see fit”: Park Lawn (ONCA), at para. 39.

[93] In Teneycke, the motions court judge awarded the successful plaintiff, costs in the amount of $50,000 all inclusive. This was basically the amount of costs sought by the plaintiffs. Here, the Plaintiffs seek costs that are significantly higher than the all-inclusive amount of $50,000.

[94] I am of the view that there are reasons to deviate from the Court of Appeal’s guideline of $50,000 inclusive, for the costs of this motion. There was a significant amount of work required for the motion. The record consists of close to 5,000 pages. There were cross-examinations of five witnesses over the course of three days. The motion was argued over a full day. The motion was of importance to the Plaintiffs because if unsuccessful, the action would have been struck. Both the Plaintiffs and Defendants submitted cost outlines in which the amount sought, even on a partial indemnity basis, exceeded $50,000.

[95] Having regard to the factors identified in R. 57.01, I award partial indemnity costs of the motion to the Plaintiffs fixed in the amount of $75,000 inclusive of counsel fee, disbursements, and H.S.T. I am satisfied that an award of costs in this amount is fair, reasonable and within the expectation of the Defendants to pay. The costs are payable within 30 days of the date of this endorsement.

DISPOSITION

[96] For the reasons set out above, I dismiss the Defendants’ motion.

[97] I award partial indemnity costs of the motion to the Plaintiffs fixed in the amount of $75,000 inclusive of counsel fee, disbursements, and H.S.T. The costs are payable within 30 days of the date of this endorsement.

Chalmers J.

DATE: May 3, 2024