Superior Court of Justice – Ontario
Court File No.: CV-24-00724220-0000
Date: 2025-03-20
Between:
Solmar Inc. and Benny Marotta, Plaintiffs
and
Stewart Hall, Defendant
Before: E.M. Morgan
Counsel:
William McDowell, Derek Knoke, and Drew Black, for the Plaintiffs
Ryder Gilliland and Michael Robson, for the Defendant
Heard: 2025-02-12
ANTI-SLAPP MOTION
I. Background
[1] The Plaintiff, Benny Marotta, is a real estate developer; the other Plaintiff is his corporation, which is apparently misnamed. The Plaintiff’s latest development project is in Niagara-On-The-Lake (“NOTL”).
[2] The Defendant is a retiree who lives in NOTL. He is an outspoken user of social media, especially when it comes to opposing real estate development proposals for the area.
[3] The action and motion is focused on Facebook posts that the Defendant wrote on a local community page that were critical of the NOTL city council in giving a first stage approval of the Plaintiff’s latest development project. Those writings contained what the Plaintiff considers to be an ad hominem attack on his character. The Defendant accused the Plaintiff of having a history in NOTL and elsewhere of being corrupt and aggressive toward all who oppose him, and accused council members of having taken bribes from the Plaintiff. The Plaintiff has sued for defamation.
[4] In this motion, the Defendant takes the view that his post was fair comment and that the action against him is strategic litigation against public participation (“SLAPP”). He moves for dismissal of the action pursuant to section 137.1 of the Courts of Justice Act (“CJA”).
II. The Cash Envelope and the Facebook Post
[5] In October 2022, a company owned by the Plaintiff acquired a large property in NOTL that was formerly the site of Parliament Oak public school and was zoned institutional non-commercial. The surrounding neighbourhood is an upscale district composed of single-family houses, a number of which are designated as heritage homes. The Plaintiff brought an application to amend the town’s official plan and zoning by-law to demolish the school building and rezone the property to permit the development of a four-story hotel. It was a locally controversial proposal.
[6] On March 4, 2023, a year before the NOTL planning committee met to vote on the Parliament Oak proposal, the Plaintiff had lunch with Town Councillor Gary Burroughs at the Plaintiff’s Two Sisters Vineyard restaurant. During the course of the lunch, the Plaintiff retrieved an envelope from a safe in his office and handed it to Councillor Burroughs. The envelope contained $10,000 in cash, and the Plaintiff told the Councillor that it was a contribution for his campaign.
[7] The $10,000 gift could not have been a legitimate political contribution; that amount would represent roughly three times the annual limit for a contribution and would be $9,975 over the limit for an all-cash donation under the Election Finances Act, RSO 1990, c E.7. Plaintiff’s other explanation for the money is that he simply felt sorry for Councillor Burroughs, who had in recent years endured some personal financial difficulties.
[8] In any case, there is no evidence that the Plaintiff asked anything in return for the gift, and the following day the Councillor called the Plaintiff to say that he could not accept it. The Plaintiff deposes that he told Councillor Burroughs that in that case he should give the money to his church. That was apparently the last communication between the two of them.
[9] Councillor Burroughs delivered the cash to NOTL staff. The matter was subsequently investigated by the NOTL Integrity Commissioner, who reported in September 2023 that it was taking no further action and that it found no grounds to warrant a further investigation. Likewise, the matter was referred to the police, who conducted their own investigation and determined that no action need be taken. These conclusions were widely published at the time. In cross-examination, the Defendant acknowledged that he was aware of them and that he never looked any further into the matter:
Q: And you’re aware that the police investigated this interaction?
A: Yes.
Q: Right, and they took no action?
A: Yes, that’s correct.
Q: And as I understand it, the integrity commissioner looked at this interaction and took no action?
A: That is correct.
Q: You didn’t personally complain to the integrity commissioner?
A: No.
Q: And you never tried to speak to Mr. Marotta about this incident?
A: No.
[10] Nine months later, on June 11, 2024, NOTL staff issued a report recommending approval of the Parliament Oak re-zoning application. Staff considered input from various planning experts as well as from the broader NOTL community, including from individuals who opposed the development. The report shows that each of the comments received were addressed in terms of the planning rationale for the decision, with NOTL staff issuing written reasons for supporting the re-zoning application. The comments and public input into the application did not raise any concerns about the Plaintiff or his companies having a history of corruption or bribery.
[11] On June 25, 2024, the NOTL Council voted on the re-zoning of Parliament Oak. The re-zoning application was passed by a vote of 5-4. As Plaintiff’s counsel point out, it is noteworthy that Councillor Burroughs voted against the application.
[12] The following day, on June 26, 2024, the Defendant took to social media, posting the following statement on the page of a community Facebook group called “NOTL 4U”:
Solmar [Plaintiff] has a history of dipping into the cookie jar, not only in NOTL but throughout southern Ontario, most notably in Caledon. Through corrupt and aggressive business tactics Solmar has gotten their way by bullying and outlasting their political opponents with hundreds of millions of dollars in lawsuits. On the reverse side Solmar is generous to it's [sic] friends with perks and lavish gifts of all kinds.
Are we to believe Benny's [Plaintiff’s] gift of cash, that was refused by councillor Burroughs, was a one-off? Of the town staff who recommended approval for the Parliament Oak hotel zoning and the councillors who voted for it, how many received cash or gifts in kind from Marotta that were not reported?
Something stinks here. The approval of a large, luxury hotel surrounded on 4 sides by single family homes is a travesty. Particularly in a small town whose tourism is dependent, in part, by it's [sic] reputation as the prettiest town in Ontario. Our town leaders should be ashamed. It is a sad day when greed for profits wins over quality of life for residents.
Google ‘Caledon Solmar court case’ if you would like to learn more about the way Solmar uses aggressive tactics in defeating their opponents.
[13] I make no comment on the content of this Facebook post – i.e. whether it contains truth, whether it is ‘just desserts’ for the Plaintiff, whether it is an effective form of community advocacy, etc. But I am not editorializing when I say that the tone and content of the message is, by any measure, intemperate. The fact that it prompted a lawsuit is perhaps the least surprising thing about it.
[14] In a comment below the Facebook post, one reader questioned the strong language. In response, the Defendant conceded that he has no evidence of a history of corruption by the Plaintiff, but in a follow-up post doubled down on the accusation:
Everything in my post is in the public record with some opinions thrown in. Google search Solmar Caledon court case or Burroughs Marotta cash envelope or Solmar ties to Ford government. Look at some of the links in replies to this post. I have no proof that anyone other than Councillor [sic] Burroughs was offered cash but come on, do you really think he was the only one? Look at Solmar's record. They have been doing this stuff for decades.
[15] The NOTL 4U Facebook page has 3100 members, including several local town councillors. It is an open group page, accessible by members and non-members alike. Councillors have been known to post messages there whether or not they are themselves members.
[16] The Defendant has stated in cross-examination that, “I live in a small town where there is a tremendous amount of gossip”. NOTL is a town of 19,000 residents, and in the small-town environment described by the Defendant one can reasonably assume that a significant percentage of the community will have seen or been referred to the Defendant’s post. The issues it touched upon – the Plaintiff’s development proposal and the cash payment to Councillor Borroughs – were prominent and newsworthy, and the post itself was phrased in an inflammatory way which would call attention to itself.
[17] I do not need to pick the Defendant’s words apart phrase by phrase to show their intent. Suffice it to say that, read as a whole and in context, the thrust of the initial Facebook post, together with the reply post, is that the Plaintiff and his companies have a longstanding practice of bribing public officials and of suing all who oppose him. The two posts also convey that those public officials who support the Plaintiff’s real estate projects, not only in NOTL but across southern Ontario, have either been intimidated or received bribes and are equally corrupt.
[18] Counsel for the Plaintiff concedes that the Plaintiff is or has been engaged in some personal litigation against the mayor of Caledon, as prominently mentioned in the Defendant’s original post. But he points out that that legal action is unrelated to any development proposal in Caledon or elsewhere, and submits that the Defendant’s reference to it in the context of his Facebook message about development approvals is thus an entirely gratuitous reference injected as an element of character assassination rather than as a bona fide argument about the Plaintiff’s real estate developments.
[19] The Defendant all but conceded in cross-examination that he had accused the Plaintiff of having a history of wrongful conduct virtually everywhere he turns. In fact, he agreed with Plaintiff’s counsel when it was put to him that he was “accusing [the Plaintiff]…of corruption in Southern Ontario”, and that he was doing so despite the fact that, as he said in his follow-up post, “I have no proof…”
III. The Anti-SLAPP Test
[20] It is by now trite law that under section 137.1(3) of the CJA, the Defendant can potentially have the claim against him dismissed if he can meet a “threshold burden” of satisfying the court that the proceeding arises from an expression relating to a matter of public interest: Bent v. Platnick, 2020 SCC 23, para 78. To do so, the parties must go through a multi-step test.
[21] If the Defendant meets the threshold burden, the onus shifts to the Plaintiff to demonstrate that the action should not be dismissed. In that case, the Plaintiff would have to clear a “merits-based hurdle”: Ibid, at para. 3. Pursuant to sections 137.1(4)(a)(i) and 137.1(4)(a)(ii) of the CJA, that would require him to establish that there are grounds to believe that the claim has substantial merit that the Defendant has no valid defence.
[22] The Plaintiff would also then have to clear a further “public interest hurdle”: Ibid., at para. 139. As set out in section 137.1(4)(b) of the CJA, this final hurdle requires him to satisfy the court that the harm likely to be or have been suffered by it as a result of the Defendant’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
[23] I would also point out that an anti-SLAPP motion should be treated as a screening device: Lascaris v. B’nai Brith Canada, 2019 ONCA 163, para 30. It is not a version of summary judgment motion that must address the entire claim on its merits. Rather, the CJA’s anti-SLAPP provisions aim “to remove from the litigation stream at an early stage those cases, which under the criteria set out in the section, should not proceed to trial for a full determination on the merits: 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, para 73.
[24] Accordingly, “an anti-SLAPP motion is meant to be efficient and economical”: Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, para 39. I will proceed here with that guidance in mind.
a) Public Interest
[25] Under section 137.1(3) of the CJA, an expression will relate to a matter of public interest if it relates to a subject on which a segment of the community would be interested in discussing or in receiving the information expressed by the Defendant. At this stage, the quality or merits of the information being expressed is not relevant: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, paras 24, 78.
[26] The Plaintiff concedes that the question of whether public officials have been given bribes by the Plaintiff in exchange for development approvals is a subject in which the community would have a genuine interest. I am therefore prepared to accept, without the need for further analysis, that the Defendant’s Facebook posts are related to a matter of public interest as that phrase is used in section 137.1(3) of the CJA.
b) Substantial Merit
[27] The second stage of analysis – are there grounds to believe that the claim has substantial merit? – does not set a high bar: Hamer v. Jane Doe, 2024 ONCA 721, para 44. According to the Supreme Court of Canada, the “grounds to believe” standard that the Plaintiff must meet, “requires a basis in the record and the law – taking into account the stage of the litigation:” Bent v. Platnick, 2020 SCC 23, para 87. As long as the words refer to the Plaintiff, the words have been published to a third party, the words would tend to lower the plaintiff’s reputation in the eyes of reasonable people, the claim will meet this stage of the test: Points SCC, at paras. 48-54.
[28] Any fair reading of the Defendant’s Facebook messages would conclude that they convey that the Plaintiff is an aggressive and corrupt developer who has a history of bribing public officials, and that any officials who approve one of his proposed developments must have been intimidated or bribed. The message is designed to do more than to galvanize opposition to the Parliament Oak development project; it is designed to disqualify any and all development by the Plaintiff. Not only does it call the Plaintiff a criminal operator, but it “casts aspersions”, as the Defendant has conceded, on any officials who might agree with him.
[29] The Defendant has taken the position that his comments on Facebook were not really accusatory. He contends that he was merely asking rhetorical questions or simply advising readers to do their own research into the Plaintiff. Frankly, neither of those explanations represents a realistic or tenable reading of the Facebook posts.
[30] Comments such as “Are we to believe Benny's gift of cash, that was refused by councillor Burroughs, was a one-off?”, or “[H]ow many received cash or gifts in kind from Marotta that were not reported?”, or “[C]ome on, do you really think he was the only one?”, are so much more accusatory than even a rhetorical question that might be used in debate. They are piercing barbs, whose form is a question but whose meaning is an accusation. For the Defendant to say that he was just raising questions is, frankly, to understate the intelligence of the reader. An expression like “how many cash gifts were not reported?” is a question to same effect as “does the sun rise in the east?” – i.e. a sardonic way of suggesting that of course there were other cash gifts.
[31] The same can be true of the Defendant’s explanation that he was merely telling people that it’s all on Google and they should go look it up. That is not, as the Defendant says, a bona fide invitation for people to do their own considered and thorough research. Rather, it is a sardonic way of stating that the answer to whether the Plaintiff is a corrupt developer is obvious and that ‘everyone knows it’. Likewise, the Defendant did not pose his point as a series of questions in order to disguise his meaning or to prompt the reader’s curiosity; rather, his set of questions, the most jaded of which begins with the phrase “Come on…”, are designed to augment the message’s cutting and prejudicial edge.
[32] For the Defendant to characterize his own interrogatories as mere questions is to deny their true nature. The impugned Facebook posts were designed to lower the Plaintiff’s reputation in the eyes of the reasonable reader, and they are bound to do so. The accusations that they express are such that the Plaintiff has felt compelled to seek redress. The message cannot be rationally understood in any other way.
c) No Valid Defence
[33] Where there are no grounds to believe that the Defendant has a valid defense to the defamation claim, the anti-SLAPP motion will fail. As the Court of Appeal explained in Hamer, at para. 46: “Fulfillment of the ‘grounds to believe’ standard only ‘requires a basis in the record and the law - taking into account the stage of the litigation’: citing Bent, at para. 87; Pointes, at para. 3.
[34] It is the Defendant’s position that his original Facebook post and the follow-up post were fair comment. In Hansman v. Neufeld, 2023 SCC 14, para 96, citing Grant v. Torstar Corp., 2009 SCC 61, para 31, the Supreme Court set out the elements of that defense succinctly:
The fair comment defence has five elements. First, the ‘comment must be on a matter of public interest’ (Grant, para. 31). Second, it must be ‘based on fact’ (para. 31). Third, ‘though it can include inferences of fact, [it] must be recognisable as comment’ (para. 31). Fourth, it must satisfy an objective test: ‘could any person honestly express that opinion on the proved facts?’ (para. 31). Finally, even if the above elements are met, ‘the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice’ (para. 31).
[35] Counsel for the Plaintiff is of the view that the defense of fair comment is inapplicable here because, inter alia, there are insufficient proved facts in the Facebook posts on which the opinion expressed therein could objectively be expressed. Plaintiff’s counsel’s point is that, other than the single incident between the Plaintiff and Councillor Burroughs, none of the facts alleged against the Plaintiff is proved at all. Indeed, the Defendant himself confirmed in cross-examination that he was expressing his views about the Plaintiff despite having “no proof”.
[36] As explained above, his explanation that he was inviting readers to research the proof themselves was more of a cynical deflection than a sincere statement. The Defendant also confirmed in cross-examination that, despite telling readers to “Google” it, he had not read the various articles that come up on a Google search of the Plaintiff.
[37] In any case, Plaintiff’s counsel points out that those articles, when they are actually read, do not provide a factual basis for the Defendant’s statements in the Facebook posts. And while one must in evaluating a text like the Facebook posts allow some latitude for the author to extrapolate from facts in expressing his opinion, it is well established that the fair comment defense cannot stray too far from established facts. Otherwise, the supposed fair comment can too easily become “a cloak for mere invective”: WIC Radio Ltd. v. Simpson, 2008 SCC 40, para 51.
[38] I am inclined to agree with Plaintiff’s counsel that a fair-minded person could not honestly express the views contained in the Defendant’s Facebook posts based on the Google sources that it purports to rely on. Those sources simply do not support facts that could ground the Defendant’s published views.
[39] To take just one example, when referred to his question, “the councillors who voted for [the Plaintiff’s development proposal], how many received cash…?”, the Defendant indicated that he was referring primarily to Councillor Wendy Cheropita. He explained that he had read about her campaign platform and that it seemed not to support more development in NOTL. Indeed, the platform of other councillors such as Ms. Cheropita are readily accessible on Google. Knowing that, the Defendant therefore suggested in the Facebook posts that councillors such as Ms. Cheropita must have been given the same type of envelope of cash that Councillor Burroughs received and rejected.
[40] In cross-examination, the Defendant conceded that his suggestion about other councillors was just a provocative statement based on nothing found on Google or anywhere else. In fact, he stated that he does not actually believe that what he described as the suspicious 5-4 vote in favour of the Plaintiff’s project was the result of Councillor Cheropita or anyone else actually taking a bribe. It was all done just for argument’s sake.
[41] The Defendant admits that he went out of his way to “cast aspersions” on NOTL councillors, but then was also compelled to admit that these aspersions were based on nothing. The facts about the Plaintiff’s re-zoning application are contained in the planning committee’s report, to which the Defendant’s Facebook posts never alluded or referred his readers. Councillor Cheropita and others made publicly available submissions to council in respect of the Parliament Oak proposal, and those submissions made extensive reference to the staff report and the town planning considerations contained therein. There is, in fact, nothing in the acts or words of those councillors that voted in favour of the re-zoning application that would prompt the kind of accusatory comments that the Defendant published on Facebook.
[42] In their factum, Plaintiff’s counsel have compiled a list of falsehoods masquerading as facts on which the Facebook message is premised. These include:
(i) ‘Solmar has a history of dipping into the cookie jar, not only in NOTL but throughout southern Ontario, most notably in Caledon’;
(ii) ‘Through corrupt … tactics Solmar has gotten their way’;
(iii) ‘Everything in my post is in the public record with some opinions thrown in’;
(iv) ‘They [the plaintiffs] have been doing this stuff [bribing municipal councillors] for decades’.
[43] This use of false “facts”, together with a smear campaign against NOTL councillors and the Plaintiff, and the simultaneous disregard of actual facts contained in the council’s report and public debate, undermines the fairness of any comment contained in the Defendant’s Facebook posts. The comments were, to the Defendant’s knowledge, entirely unfair.
[44] Furthermore, “even if the elements of the ‘fair comment’ defence are established, the plaintiff can still succeed by proving that the defendant was actuated by malice”: WIC Radio Ltd. v. Simpson, 2008 SCC 40, para 1, citing Sun Life Assurance Co. of Canada v. Dalrymple. In the context of defamation/fair comment, malice may be demonstrated in a number of different ways: a subjective desire to injure the Plaintiff, intentional dishonesty, reckless disregard for the truth, or an ulterior motive: Hill v. Church of Scientology, para 145. Plaintiff’s counsel submits that the Defendant’s Facebook posts fall into each of these categories.
[45] In the first place, the Defendant showed a reckless disregard for the truth when he wrote in his follow-up post that, “Everything in my post is in the public record”. Not only had he not read the publicly available articles that he referred his readers to, but those articles did not support the accusation he made about the Plaintiff having a history of corrupt practices. He displayed little interest in checking the facts before publishing his message, despite expressly representing that he had. The Defendant was also intentionally dishonest in asserting that the councillors who voted in favour of the Plaintiff’s development proposal were also guilty of corruption; in cross-examination he conceded that he did not actually believe that to be the case.
[46] Most importantly, the content and the timing of the Facebook posts indicates that the Defendant was motivated by an ulterior motive and a desire to harm the Plaintiff by undermining his development approval. In cross-examination, the Defendant conceded that his real purpose in publishing the Facebook posts was to thwart the Plaintiff’s development of Parliament Oak, and that he did so by pointing to newspaper articles about the Plaintiff’s dealings in Caledon and insinuating that, as he put it, “there were corrupt activities there.” This falsehood – nothing in any Google or other sources speaks of corruption allegations relating to Caledon – was thrown into the Facebook posts as a direct attack on the Plaintiff’s character, and was aimed at countering his ability to get development projects approved.
[47] Separate from this direct intent to injure the Plaintiff, the Defendant also intentionally cast false aspersions on city councillors in order to make it difficult for them to vote in favour of the Plaintiff’s proposal. As Plaintiff’s counsel points out, the Parliament Oak development will require future staff and NOTL council support, including site plan approval. The Defendant’s Facebook posts, raising the spectre of corruption allegations and scandal, were, effectively, a warning shot to the NOTL council. The not very subtle message is that support for the Parliament Oak development will implicate both staff and elected councillors in allegations of corruption. Without staff and council support, of course, the Defendant will have accomplished his ulterior motive – i.e. he will have stopped the Parliament Oak development, and in the process will have caused substantial harm to the Plaintiff.
[48] With problems on literally every front – i.e. in terms of false facts, objective meaning, ulterior motive, malice and intent to injure – there are no grounds to believe that the Defendant has a valid defense of fair comment.
d) The Weighing of Harms
[49] For the final stage of the anti-SLAPP analysis, the Plaintiff must establish that the harm suffered or likely to be suffered as a result of the impugned expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the Defendant’s expression. In other words, the Plaintiff must 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”: Bent v. Platnick, 2020 SCC 23, para 141; Points (SCC), at para. 82.
[50] Since s. 137.1(4)(b) of the CJA requires a weighing exercise, there is no threshold requirement for the harm to be sufficiently worthy of consideration. The question is simply whether the harm is “sufficiently serious” that the public interest in the case advancing outweighs the public interest in the case being dismissed: Points (SCC), at para. 70. Moreover, the Supreme Court has reasoned that, “[e]ither monetary harm or non-monetary harm can be relevant” in terms of this balance: Points (SCC), at para. 69. Accordingly, harm is not limited to monetary harm, and neither type of harm – i.e. monetary or non-monetary – is more important than the other.
[51] Given that the Plaintiff need not demonstrate specific economic loss at this stage, his only evidentiary requirement is that he show facts in the record from which an inference about the likelihood of harm can be drawn: Points (SCC), at paras. 67-71. As discussed above, the Plaintiff’s development proposal will require further planning approvals and will be up for future votes at the NOTL Council. The evidence in the record suffices for me to draw an inference that the accusations levelled at the Plaintiff and the aspersions cast at NOTL councillors by the Facebook posts will weigh on, and potentially influence, their thinking about future votes.
[52] The potential loss of the Parliament Oak development (as well as the possible loss of any of any of the Plaintiffs’ other developments) because of reputational damage to the Plaintiff, and the stigmatization of any vote in his favour by city councillors, constitute serious harm. Being known as a corrupt developer whose supporters take bribes is bound to be a type of harm that will cause serious detriment to the Plaintiff and his business.
[53] On the other side of the coin, community debate over the merits of a development proposal is certainly a form of expression with great value. The Defendant’s stated concern that development in the NOTL region be kept in line with the existing character of the area is, if it were carried on in a genuine way, the very type of expression that the anti-SLAPP legislation is designed to protect.
[54] The problem here, however, is not so much with the subject matter of the impugned expression, but the way that subject matter has been addressed. It is one thing to oppose a development project; it is quite another thing to engage in false narratives about the developer’s supposed long history of corruption and intimidation such that town staff and councillors fear supporting it.
[55] Defendant’s counsel argue that there must be some leeway given to expression on social media sites. They submit, correctly, that ordinary readers do not consider everything they see on social media to be scientifically precise, and that in any case the postings on media such as Facebook are easily forgotten. The media itself is not prone to longevity in terms of its influence.
[56] While all that is true, the Court of Appeal has also been clear that social media is not a defamation-free zone: Mondal v. Kirkconnell, 2023 ONCA 523, para 40. The sting of disparaging comments on Facebook and other social media is no less painful than that of a libel written in ink on paper. Facebook posts are not a raw, untamed area where people can defame one another without consequences.
[57] Facebook is also not a place where, as the Defendant seems to suggest, wealthy business people are fair game. In any case, there is no real evidence about the disparity of wealth between the parties. The Plaintiff is a successful developer, but the Defendant is a retiree who has owned three businesses and who resides in an affluent neighbourhood in NOTL – the very privileged residential life that he is out to protect in his Facebook attack on the Plaintiff. Nothing in the record suggests that the two parties do not exist on an equal playing field in the litigation sense of that term.
[58] Further, while the Defendant characterizes the lawsuit as vengeful and retributory, there is little in the record that points to that kind of motive or bad faith: see United Soils Management Ltd. v. Barclay, 2018 ONSC 1372. Rather, the Plaintiff’s claim appears to be exactly what it is – an action seeking to address the tarnishing of the Plaintiff’s business reputation and to preserve future objectivity among NOTL councillors in assessing his development proposals.
[59] Finally, Facebook and other social media do not make up an area where a person who makes one transgression has no redress for anything else. Having read about the Plaintiff’s attempted gift to Councillor Burroughs, the Defendant has apparently concluded that it is ‘open season’ on the Plaintiff and all associated with him. But with the greatest of respect, that is not how the law of defamation works, and that approach is not excusable as a form of public policy discourse.
[60] There is, of course, legitimate public interest in expression that addresses real estate development and local development applications. But that interest does not weigh heavily on the ledger where the expression, as here, takes the form of serious, unsubstantiated accusations against a developer and city councillors rather than an actual critique of a development policy or plan. Where the impugned expression is composed almost entirely of gratuitous slurs, the balance inevitably tips in the Plaintiff’s favour.
IV. Disposition
[61] The Defendant’s motion is dismissed.
[62] The parties may make written submissions on costs. I would ask Plaintiff’s counsel to email my assistant with brief submissions within two weeks of today, and Defendant’s counsel to email my assistant with equally brief submissions within two weeks thereafter.
Date: March 20, 2025
E.M. Morgan