Ontario Superior Court of Justice

Court File No.: CV 20-00000029-00A1
Date: March 6, 2025

BETWEEN:
The Estate of Colombe Quesnel, Plaintiff
– and –
Gilles Quesnel, Defendant (Responding Party)
– and –
Normand Quesnel, Rachelle Paquette, Mireille Bray, Claude Quesnel, Guy Quesnel and Marc Quesnel, Third Parties (Moving Parties)

No one appearing

D. Girlando and T. Hewitt – Lawyers for the Defendant/Responding Party
No one appearing for the Third Party, Mireille Bray
D. Morin-Pelletier and Y. Atif – Lawyers for the Third Party, Normand Quesnel and Rachelle Paquette
J. Rocque – Lawyer for the Third Party, Marc Quesnel
No one appearing for Claude Quesnel and Guy Quesnel

Heard: February 19, 2025
Justice M. Flaherty

Introduction

[1] Gilles Quesnel has filed an action in defamation against his six siblings (“Action”). Three of those siblings, Marc, Rachelle, and Normand have brought this motion under s. 137.1 of the Courts of Justice Act, RSO 1990, c C.43 (“CJA”). They seek to have the Action dismissed against them because they say it is a strategic lawsuit against public participation ("SLAPP"). The Estate and the remaining siblings did not participate in the motion.

[2] Gilles argues that his Action should not be dismissed at this early stage. He submits that it is a legitimate attempt to vindicate the reputational harm caused to him by his siblings.

[3] The motion proceeded as a bilingual hearing on February 19, 2025.

[4] For the reasons that follow, the motion is dismissed. I am satisfied that the Action is not a SLAPP. There are grounds to believe that the Action has substantial merit and that the moving parties have no valid defence. The public interest in permitting the Action to continue outweighs the public interest in protecting the impugned expressions.

Overview of the Facts

[5] Lucien died in December 2018. Colombe died about a year and a half later, in July 2020.

[6] Shortly after Lucien’s death, Gilles’ siblings began making a series of statements accusing him of psychologically and financially abusing their parents, stealing from them, and sexually abusing his mother, his daughter, and one of his sisters.

[7] Some of the impugned statements were made verbally, others were in writing. At this stage of the litigation, there is some ambiguity about which sibling or siblings is alleged to have made certain statements. However, there is no dispute that one or more of the siblings made statements to the police, the children’s aid society (“CAS”), Lucien and Colombe’s lawyer, the nurse conducting a capacity assessment of Colombe, and well over a hundred friends, family members, and members of the extended community.

[8] For example, Marc sent the following email to more than a hundred people. Another sibling, Mireille, also sent substantially the same email under her own signature:

[9] The siblings’ allegedly defamatory statements are numerous, however the tenor and content of the statements are similar. In essence, Gilles is said to have stolen money from his parents, abused them, and abused other members of his family.

[10] The parties agreed that the siblings’ statements fall into three broad categories, based on who received the information. Those categories are: (a) statements to professionals, such as the lawyer administering the parents’ estate, the funeral director, and the nurse assessing Colombe’s capacity; (b) statements to friends, family, and members of the community; and (c) statements to authorities, such as the Ontario Provincial Police (“OPP”) and CAS.

[11] In applying the legal test to the facts of this case, I have found it useful to do so through the lens of these agreed-upon categories.

Legal Principles

[12] Section 137.1 of the CJA is a pre-trial screening procedure that is designed to weed out SLAPPs at an early stage. The court of appeal has described SLAPPs as the practice of initiating lawsuits not to vindicate bona fide claims, but rather to deter, intimidate, or undermine someone from expressing a position on a matter of public interest: Marcellin v. London (Police Services Board), 2024 ONCA 468 (“Marcellin”).

[13] Section 137.1 of the CJA is meant to prevent obviously unmeritorious lawsuits from proceeding, but it does not grant carte blanche to defame. It does not alter the substantive law of defamation or the right of persons whose reputations have been wrongly damaged to seek redress: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 at para. 16 (“Pointes Protection”); and Burjoski v. Waterloo Region District School Board, 2024 ONCA 811 at para. 41.

[14] A motion under section 137.1 is determined based on a limited weighing of the evidence, having regard to the stage of the litigation and the screening purpose of the motion: Pointes Protection, at para. 52; Marcellin, at para. 9. This does not involve a deep dive into the record, nor is it the place for an ultimate adjudication of the issues.

[15] Subsections 137.1(3) and (4) of the CJA set out the following test for anti-SLAPP motions:

a. The initial burden is on the moving parties -- Marc, Normand, and Rachelle – to show on a balance of probabilities that the proceeding arises from an expression relating to a matter of public interest.

b. If this is established, the burden shifts to the responding party — Gilles — to show that there are grounds to believe that: (a) the proceeding has substantial merit; and (b) the moving parties have no valid defence.

c. Finally, Gilles has the onus of showing on a balance of probabilities that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. This final weighing exercise under s. 137.1(4)(b) is the fundamental crux of the analysis.

Analysis

Does the Action Arise from an Expression Relating to a Matter of Public Interest?

[16] There is no dispute Gilles’ Action arises from expression. The contentious issue is whether this expression relates to a matter of public interest.

[17] The moving parties submit that, fundamentally, the statements are about the exploitation, mistreatment, and abuse of elderly people. They say the public has a genuine interest in receiving information about elder and other forms of abuse, including instances where abuse is reported.

[18] For his part, Gilles submits that the statements are fundamentally about a private family dispute. He states that expression referring to a matter of public interest is different and must not be confused with an expression relating to a matter of public interest: Pointes Protection, at para. 29.

[19] At this stage, the questions I must answer are: What is the expression really about? And does that relate to the public interest?

[20] In this context, “public interest” is given a broad and liberal interpretation and the burden at this stage of the test is not onerous: Pointes Protection, at para. 28. Broadly speaking, a matter is of public interest if some segment of the community would have a genuine interest in receiving information on the subject. However, purely private disputes that have no immediate bearing on the rights or obligations of others will not typically be considered matters relating to public interest: Grist v. TruGrp Inc., 2021 ONCA 309 at para. 19.

[21] The siblings’ expression must be considered in the context in which it was made. However, the quality or merit of the expression and the siblings’ motive and manner of communicating are not relevant in determining whether the expression relates to a matter of public interest: Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730 at para. 24.

[22] I find the moving parties have met their burden in respect of two of the three categories of expression.

[23] First, the siblings’ communications to authorities (OPP and CAS) were fundamentally about raising concerns about abuse and theft. There is an obvious public interest in members of the public feeling free to report conduct of concern to the police. As the Court of Appeal explained in Marcellin, police complaints would normally meet the threshold test under s. 137.1(3) of being expressions in the public interest. I find that the same is true for complaints to children’s aid authorities.

[24] Second, based on the record before me, I find that the siblings’ communications to professionals involved in their parents’ estate, funeral, and care were also, fundamentally, about raising concerns about theft and abuse. I accept that there is a public interest in members of the public being able to inform professionals and service providers of such matters, so these professionals can exercise appropriate diligence in providing these services.

[25] The third category of expression is more challenging. It involves communications such as the email reproduced above, alerting friends, family, and members of the extended community of alleged theft and abuse, and asking them not to attend Lucien’s funeral.

[26] I do not agree with the moving parties that these communications relate to the broader issues of preventing and denouncing elder abuse, exploitation, or mistreatment. Notably, the content of the expression raises no general concerns about abuse, theft, or the vulnerability of elders or other members of the public. My view is that these communications are fundamentally about a private family dispute. The allegations of theft and abuse are grounded in that family dispute.

[27] Not every allegation of abuse within a personal relationship will be a matter of public interest. However, there are cases where allegations of sexual assault, abuse, harassment or bullying have been found to be expressions that relate to a matter of public interest: Smith v. Nagy, 2021 ONSC 4265 (“Smith”); Brown v. Landriault, 2024 ONSC 7027 (“Brown”); and Bullard v. Rogers Media Inc., 2020 ONSC 3084 (“Bullard”). Although these cases were ultimately grounded in personal interactions between two or more individuals, each involved an element that transcended that personal relationship and gave rise to a broader debate.

[28] In Brown, the court concluded that allegations of sexual assault and child predation were matters of public interest because the public has a genuine stake in knowing about possible predators in their community. Bullard involved a magazine article, alleging that a comedian and radio host had engaged in a series of harassing behaviour. The court held that the public interest threshold was met because gendered-based harassment is a matter of public concern and because this particular case had attracted considerable public attention given Mr. Bullard’s notoriety.

[29] The decision in Smith involved allegations against a tabletop role-playing game (“RPG”) creator and adult film performer. The court held that the allegations arising out of the parties’ relationship related to matters of public interest. It had broader implications in terms of Mr. Smith’s alleged conduct on the reputation of the RPG community and the safety of female players with whom he came in contact. In that case, the power imbalance between the parties and the fact that the allegations involved gender-based violence and abuse were also relevant factors.

[30] The case before me has no apparent element of notoriety, nor do any aspects of the expression suggest that public safety is at issue or that members of the community have an interest in the expression because they may be at risk of harm. I accept that there was a power imbalance between Gilles and his elderly mother and that her gender and age are relevant considerations. However, on the facts before me, this does not elevate a family dispute to a matter relating to the public interest. The fact that the community may have been curious or interested in this family’s affairs is not sufficient to meet the public interest threshold: Sokoloff, at para. 19.

[31] In sum, the moving parties have established on a balance of probabilities that two of the three categories of expression relate to matters of public interest. For these two categories of expression, it is necessary to consider the next stages of the analysis.

[32] The moving parties have not established that the third category of expression -- communications directed to friends, family, and the extended community – relates to matters of public interest. This would be a sufficient basis to dismiss the motion as it relates to this category of expression. However, I have nevertheless considered how the remaining stages of the test apply to all three categories of expression.

Substantial Merit and No Valid Defences

[33] Gilles has the onus of establishing grounds to believe that his defamation claim has substantial merit and that there is no valid defence. This standard has been described as requiring some basis in the record and the law to support Gilles’ position: Marcellin at para. 10; Bent v. Platnick, 2020 SCC 23 at para. 103 (“Bent”). It requires something more than mere suspicion, but less than proof on the balance of probabilities: Pointes Protection, at paras. 39-40. The stage of the litigation at which the motion is brought is also taken into account.

A. Substantial Merit

[34] To establish substantial merit, Gilles must show grounds to believe that the Action 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. Gilles is not required to show that the Action is actually meritorious.

[35] The moving parties submit that Gilles has not met this onus for two reasons: (a) the impugned expression is true and therefore not defamatory; and (b) any harm to Gilles’ reputation is speculative.

[36] The siblings have made very serious allegations against Gilles, including that he abused his parents, sexually abused his mother and put her life in danger. A likelihood of reputational harm can readily be inferred from such allegations: Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129 at para. 46. Moreover, Gilles has provided affidavit evidence about the reputational harm he suffered following Marc’s email, in particular. He explained that, since the email was sent, he has been shunned by many family members, professional contacts, and members of his community. Although he retired in 2015, he continued to work as a consultant. Gilles testified that consulting opportunities declined after Marc’s email was sent in early 2019.

[37] Whether statements are true or justified is a defence to the claim of defamation that is best dealt with at the next stage of the analysis, when addressing with the validity of the defences at play: Volpe v. Wong-Tam, 2022 ONSC 3106 at para. 150, affirmed Volpe v. Wong-Tam, 2023 ONCA 680. In any event, as I describe in more detail below, there are grounds to believe that the siblings’ statements are untrue.

[38] In this case, all three elements of the tort of defamation are supported by evidence that is reasonably capable of belief. The moving parties do not deny making comments about Gilles. There are grounds to believe that the comments are defamatory and would lower Gilles’ reputation in the eyes of a reasonable person. The comments specifically refer to Gilles and there is no dispute that they were conveyed to at least one person other than Gilles.

[39] Accordingly, I find that the Action has substantial merit.

B. No Valid Defences

[40] The moving parties have advanced the defences of qualified privilege, justification, and responsible communications on a matter of public interest. The onus is on Gilles to show grounds to believe that these defences are not valid, in the sense that they have no real prospect of success: Pointes Protection, at para. 60.

Justification

[41] The defence of justification requires the moving parties to adduce evidence showing that the statement was substantially true: Bent at para. 107.

[42] In this case, the main thrust of the impugned communications is that Gilles psychologically and financially abused his parents, stole their money, and sexually abused certain members of his family. The moving parties submit that these statements are justified because they genuinely believed them to be true, based on information received from their mother. They submit they had no reason to doubt Colombe’s sincerity or truthfulness.

[43] Importantly, the defence of justification does not rest on the siblings’ belief, whether genuine or otherwise. They will ultimately be required to adduce evidence to show that the statements were substantially true, not just that they believed them to be so.

[44] Moreover, the fact that Colombe provided information to the siblings does not necessarily establish the truthfulness of that information. There is a live issue between the parties as to Colombe’s capacity in the years prior to her passing. She underwent three types of capacity assessments between 2018 and 2020, with differing results.

[45] In addition, the record contains grounds to believe that at least some of the impugned statements are false, including those attributed to Colombe. For example:

• The record includes bank statements, which do not show any significant decreases or withdrawals to Lucien and Colombe’s accounts. The bank statements do not support Colombe’s or the siblings’ assertions that Gilles stole “a large part” of his parents’ money. Indeed, there is no evidence in the record before me to substantiate the siblings’ or Colombe’s claim that any money was stolen.
• The siblings’ statement that Gilles was named executor and attorney without Colombe’s knowledge is unsupported by the evidence. Me LaViolette, Lucien and Colombe’s lawyer testified that, in 2016, the parents knowingly chose Gilles as their executor and power of attorney. Me LaViolette stated that she had no concerns about Lucien and Colombe’s capacity at that time and no concerns that Gilles had put pressure on them.
• The CAS closed its file, noting that the claims against Gilles seemed malicious and rooted in family conflict. The OPP did not lay charges against Gilles.

[46] To be clear, I am not concluding that the impugned statements are substantially untrue. Many of these factual issues are in dispute and they cannot be resolved – even on a provisional basis -- at this early stage of the proceeding. However, there are grounds to believe that statements of abuse and theft by Gilles are not substantially true. On this basis, and for the purposes of the s.137.1 motion, I find that the defence of justification is not valid.

Qualified Privilege

[47] An occasion of qualified privilege exists if: (a) a person making a communication has an interest or duty, legal, social, moral or personal, to publish the information in issue to the person to whom it is published; and (b) the recipient has a corresponding interest or duty to receive it. Where the occasion is shown to be privileged, the defendant may publish, with impunity, remarks that may be defamatory and untrue about the plaintiff: Bent, para. 121.

[48] The privilege is qualified in the sense that it can be defeated. This can occur where the dominant motive behind the words was malice, such as where the speaker was reckless as to the truth of the words spoken, or where the information is communicated to an inappropriate or excessive number of people: Bent, para. 121; Deeb v. Zebian, 2022 ONSC 6947 at para. 126.

[49] For the purposes of this analysis, even assuming (without finding) that all three categories of expression are occasions of qualified privilege, there are grounds to believe that the privilege would be defeated.

[50] First, it seems the information was communicated to an excessive and inappropriate number of people. Not only was Marc’s email sent to over a hundred people, but he asked recipients to share the email with their own acquaintances. There is good reason to question whether the occasion of qualified privilege extends to the acquaintances of acquaintances.

[51] There are also grounds to believe that the siblings’ communications were motivated by malice. As noted, the moving parties asserted that Gilles had been appointed executor and power of attorney without his parents’ knowledge. They did so despite having learned from Me Laviolette that this was untrue.

[52] In December 2018, Mireille, one of the siblings, made inquiries of Me LaViolette, who advised that Colombe and Lucien had knowingly and voluntarily chosen Gilles as their executor and power of attorney. Mireille’s uncontradicted evidence is that she shared this information with her other siblings. The siblings disregarded the information they received from the lawyer and seem to have behaved with a reckless disregard for the truth.

[53] Moreover, the CAS worker commented that the complaint against Gilles seemed malicious and grounded in a family conflict. Counsel for the moving parties submit that this comment should carry little weight, as the worker was merely relating information provided by Gilles’ immediate family members. I cannot agree with this characterization. The worker seems to be expressing her own conclusion, in the context of assessing the risk to the family, on a scale of 0 (high risk) to 10 (low risk). The CAS worker wrote:

CPW Michaud would rate a 9/10 given the report made to the Society appeared to be of more malicious nature and rooted from the sibling conflict that has been ongoing for over 4 years.

[54] Of course, the CAS worker’s comments are not determinative. However, they provide grounds to believe that the siblings were motivated by malice.

[55] The moving parties say they genuinely believed in the truth of their statements and that the above examples can be “spun” differently and attributed to factors other than malice. Even if that were the case, it would not change the inquiry at this stage of the test. Gilles has presented grounds to believe that the siblings’ comments were motivated by malice. The evidence he relies upon is reasonably capable of belief. For the purposes of this motion, that is all that is required to satisfy the onus.

[56] For these reasons, there are grounds to believe the defence of qualified privilege is not valid.

Responsible Communication

[57] The defense of responsible communication applies where a publication is a matter of public interest, and the publisher diligently tried to verify the allegation taking into account various factors, including (a) the seriousness of the allegation; (b) the public importance of the matter; (c) the urgency of the matter; (d) the status and reliability of the source, and (e) whether the plaintiff's side of the story was sought and accurately reported.

[58] The moving parties submit that they diligently verified the content of their statements, by consulting their mother as well as each other. There are grounds to believe that these steps were insufficient and not a reasonable effort to validate the accuracy of the statements.

[59] The siblings did not make any inquiries of Gilles – his side of the story was not sought. They did not make inquiries of their parents’ financial institutions, although they could have done so. Colombe ostensibly revoked Gilles’ power of attorney in December of 2018 and assigned it to Rachelle and Normand, who acted as joint attorneys for her until her death.

[60] As noted, the moving parties’ statement that Gilles was appointed executor and attorney without his parents’ knowledge is inconsistent with the information the siblings received from Me LaViolette. In the circumstances, it is difficult to see how the statement could amount to responsible communication.

[61] Finally, there were reasons to question the reliability of Colombe as a source of information. Although aware that Colombe’s allegation about the power of attorney was unsubstantiated by the lawyer, the siblings did not take any steps to validate her other allegations. Moreover, there is a live issue as to whether Colombe had the cognitive ability to understand and recollect her circumstances in December 2018 and January 2019.

[62] In these circumstances, there are grounds to believe the defence of responsible communication is invalid.

Weighing of Interests

[63] At this stage, the onus is on Gilles to show, on a balance of probabilities, that he likely has suffered or will suffer harm; that such harm is a result of the expression established under s. 137.1(3); and that the corresponding public interest in allowing the underlying proceeding to continue outweighs the deleterious effects on expression and public participation. This weighing exercise is at the core of the analysis.

[64] A number of factors are relevant, including whether Gilles has a history of using litigation or the threat of litigation to silence critics; any financial or power imbalance; and any punitive or retributory purpose animating the Action; and whether the damages suffered are minimal or nominal: Pointes Protection, at para. 78. Additional factors may be relevant, including the importance of the expression, the broader or collateral effects on other expressions on matters of public interest, and the potential chilling effect on future expression either by a party or by others: Pointes Protection, at para. 80.

[65] Gilles submits that the substantial reputational harm he suffered outweighs any limited public interest in protecting the moving parties’ false statements that he engaged in theft and abuse.

[66] The moving parties’ position is that any harm to Gilles is speculative and, in any event, there is no causal link between the expression and any alleged harm. In the alternative, they say that any alleged harm is not so serious that the public interest in allowing the Action to proceed outweighs the public interest in protecting expression about the exploitation, mistreatment, and abuse of elderly persons. They say allowing the Action to proceed would have a chilling effect on this type of expression.

[67] Gilles has no history of engaging in litigation to silence critics. As indicated, harm to Gilles’ reputation can be readily inferred from the allegations against him, particularly given the serious nature of the allegations and the extent to which they were communicated. Gilles has also provided evidence about the harm he suffered.

[68] I am satisfied that the harm caused to Gilles may be substantial. Based on Gilles evidence, I am also satisfied that there is a temporal and causal connection in the evidence between the alleged harm and the siblings’ statements.

[69] That said, there is value to the moving parties’ communications, particularly those to authorities and professionals providing services to their parents. However, the record suggests that some of the siblings’ statements are untrue and defamatory of Gilles. There is no identifiable public interest in permitting that type of expression to continue: Marcellin, at para. 117. Moreover, in this case, as in Marcellin, there is no evidence to suggest that allowing the claim to proceed would deter these parties or others from speaking out about elder abuse, theft, and other forms of abuse. To the contrary, in this case, the siblings’ allegations against Gilles continued after his Action was filed. Their expression seems to have been undeterred by the filing of the Action.

[70] In weighing these factors, I find that the Action is a proportionate response to the siblings’ conduct. The Action is not an improper attempt through litigation to suppress expression that is in the public interest. Rather, it is about trying to remedy legitimate harm to Gilles’ reputation. This is not a case that should be summarily dismissed at an early stage.

[71] Gilles has met his burden at this stage of the analysis. The harm he has suffered or is likely to suffer as a result of the moving parties’ expression is sufficiently serious that the public interest in permitting the Action to proceed outweighs the public interest in protecting that expression.

Disposition

[72] For the reasons provided, the motion is dismissed.

[73] If the parties are unable to agree on costs, they may each submit a cost outline, attaching a draft bill of costs and any authorities, within 30 days of the release of these reasons. The cost outline submitted by each party shall not exceed three pages in length.

Justice M. Flaherty
Released: March 6, 2025