Superior Court of Justice — Ontario

Court File No.: CV-24-95203
Date: 2025-04-24

Between:
Reynolds Okoh, Axel Mensah, and 2357392 Ontario Inc. o/a The Palace Ottawa, Plaintiffs
and
Trinitee Okoye and Olivia Singaye, Defendants

Before: C. MacLeod

Counsel:
Christine Johnson & Seema Shafei, for the Defendant Okoye (Moving Party)
Albert Brunet, for the Defendant Singaye (Moving Party)
J.F. Lalonde & Kevan Wylie, for the Plaintiffs (Responding Parties)

Heard: 2025-03-04

Decision and Reasons

Introduction & Issue

[1] This was an “anti-SLAPP Motion” by means of which the Defendants seek to stay or dismiss the defamation action brought by the Plaintiffs.

[2] The Defendant Singaye has requested a bilingual hearing, her documents were filed in French and her counsel made submissions in French. Pursuant to s. 126(6) of the Courts of Justice Act interpretation was provided at the hearing. Pursuant to s. 126(7) of the Act, these reasons are written in English, but a French translation will be provided.

[3] Anti-SLAPP legislation is designed to prevent litigation from being used inappropriately to limit debate on matters of public interest. Such litigation is commonly referred to as “strategic litigation against public participation” and refers to weaponization of the courts to limit criticism or debate. In Ontario, the legislation is found in ss. 137.1–137.5 of the Courts of Justice Act.[^1]

[4] The action in question is a defamation action brought because of comments posted by the Defendants on certain social media accounts, principally Instagram and Snapchat. According to the Statement of Claim, the comments alleged the Plaintiffs were amongst other things, “rapists”, “scammers”, “disgusting human beings”, “shady”, “they terrorize young women”, are “extremely colorist”, treat black women badly, condone sexual harassment, are “creeps”, are dangerous, are “stupid Nigerians”, they are “broke”, and “their business is failing”. It is conceded that at least some of these comments would be defamatory.

[5] The question for the Court to decide is whether the Defendants can invoke the anti-SLAPP procedure and if so whether the action survives the legislative screening mechanism. In answering those questions, it is important to bear in mind that the legislation is designed to screen out the improper use of the courts to advance claims of dubious merit. The legislation is not designed to be automatically applied to all cases and when it does apply, it is a screening mechanism and neither a summary judgment motion nor a trial.

Background

[6] “The Palace” is a nightclub in the market area of downtown Ottawa. The Plaintiffs are self-described Black entrepreneurs and were at the relevant time part owners of The Palace. The Plaintiff Reynolds also owns a not-for-profit organization known as Africa Live Canada. The Plaintiffs, The Palace and Africa Live Canada have an active social media presence.

[7] According to the Statement of Claim and the affidavits of the Plaintiffs, the Defendant Okoh was a short-term employee of The Palace. She worked there between February 10 and February 17, 2024. On March 1, she posted on her Instagram account where she had 1,875 followers. She claimed the Plaintiffs were “broke”, “extremely colorist”, “creeps” who withheld money from her, that they “owe women all over the city money” and “condone sexual harassment in the club”. Later the same day she posted that the Plaintiffs are “colorist”, “take from black women” and were having sexual relations with “the bottle girls at the palace”.

[8] She posted similar attacks on Snapchat. On Snapchat, she called the Plaintiffs “scammers”, encouraged readers to go to other night clubs where “your money won’t be stolen and you will have a good time”.

[9] Some or all of these postings were allegedly linked by the Defendant to the Plaintiffs’ own social media accounts. They appeared as links or comments so that individuals visiting the social media site for The Palace, would have access to the derogatory comments.

[10] The Defendant Singaye had worked for both Africa Live Canada and at The Palace. On March 2, 2024 this Defendant posted to Instagram that she had an issue with the Plaintiffs and had not been paid thousands of dollars owed to her for months. She alleged she was owed money for work she did for Africa Live Canada “@africalive Canada”.

[11] In a second post, she portrayed the Plaintiffs as fraudsters, thieves and dishonest businessmen. Finally she posted conversations with unidentified individuals calling one of the Plaintiffs a rapist and sexual predator. She posted conversations calling the Plaintiffs “vile”, “bad” and “shady”. On another occasion she posted that the individual Plaintiffs were “disgusting human beings”, that they are “big scammers” and that she “truly do not recommend Palace”.

[12] As mentioned above, for purposes of this Motion, the Defendants concede that under Ontario law, at least some of these comments are prima facie defamatory in that they would tend to lower the plaintiffs’ reputations in the eyes of a reasonable person.

The Statutory Test

[13] S. 137.1(3) of the Act defines the type of proceeding to which the “Gag Proceedings” legislation applies. A presumption of dismissal applies if the moving party “satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.” This must be read in the context of s. 137.1(1) which reads as follows:

Purposes

137.1(1) The purposes of this section and sections 137.2 to 137.5 are,

(a) to encourage individuals to express themselves on matters of public interest;
(b) to promote broad participation in debates on matters of public interest;
(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

[14] What is clear from the wording of s. 137.1(3) and of the purposes listed in s. 137.1(1) is the fact that the legislation was not supposed to apply to every action that involves public expression let alone every defamation action. The specific purpose to which the legislation was directed was “unduly limiting expression on matters of public interest”. It is also inherent in subsections (b) and (d) that the legislature was particularly concerned that litigation not be used to silence voices that might otherwise contribute to “debates” on such matters.

[15] The first question is whether the expression that is at the heart of the litigation is expression on “matters of public interest” or contribution to “debates on matters of public interest”. In the present litigation, the question is whether posting negative comments about the character of the plaintiffs on social media meets this test. If it does not, then the statute is not engaged. If it does, the court must proceed to further steps in the analysis. This involves the court in assessing the preliminary merits of the claim and the defences. If the action survives that analysis, then the court proceeds to the final step which is a balancing exercise.

[16] Specifically, subsection (4) of the section added to the statute reads as follows:

No dismissal

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

(a) there are grounds to believe that,
(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the proceeding; and
(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

[17] The moving party has the onus of demonstrating that the Act applies under s. 137.1(3) whereas the responding party has the onus of persuading the court that the action should be allowed to proceed under s. 137.1(4).

[18] In the words of the Supreme Court of Canada, the evil the legislation was intended to address was litigation “initiated by plaintiffs who engage the court process and use litigation not as a direct tool to vindicate a bona fide claim, but as an indirect tool to limit the expression of others.”[^2] In the words of the Ontario Court of Appeal, the statute limits “litigation of questionable merit or utility brought to stifle public debate on matters of public interest.”[^3] What the legislation is designed to deter is improper use of litigation to suppress free speech. It is not designed to deprive an injured party of a remedy in appropriate cases.

[19] If the case crosses the triggering threshold of expression on a matter of public interest, the judge must dismiss the action if the plaintiff fails to meet its onus in either subsection (4)(a) or subsection 4(b). It is clear, however, that the screening and weighing process is not a rigid step by step process nor a formula. The judge must consider in a preliminary manner the apparent merits and defences as well as assessing the public interest in permitting the case to proceed against the public interest in preserving freedom of speech.

[20] Although the Charter does not apply directly to individuals, the analysis should be Charter informed. As such, the guarantee of freedom of expression in s. 2(b) of the Charter is a relevant consideration. The courts have held that the closer the expression lies to the core values of s. 2(b), “including truth-seeking, participation in political decision-making and diversity in the forms of self-fulfillment and human flourishing, the greater the public interest in protecting it”. In particular, political expression is to be jealously guarded and is the “single most important and protected type of expression”.[^4] Private defamatory acts which serve no public purpose will not be protected by the legislation.

Analysis & Decision

[21] The Defendants argue that workplace standards, sexual harassment in the workplace and exploitative labour practices are matters of public interest. Undoubtedly those are topics which are often the subject of campaigns for improvement, reform or enforcement. It is doubtful, however, that these social media posts can be interpreted as contributing to public debate or as public interest advocacy. Simply because the defamatory statements took place in the context of a dispute that could engage public interest is not enough. The Supreme Court has ruled that it is not enough to simply mention a matter that could be of public interest or about which the public is curious.[^5] The statute requires that the defamatory words constitute “expression” “that relates to a matter of public interest”. In other words, communication on a matter of public interest must be a central characteristic of the communication to engage the protection of the anti-SLAPP legislation.

[22] Section 137.1(1) suggests that the purpose of the communication must be to contribute to public debate on a matter of public interest, not simply that the communication takes place in a workplace context or is an allegation about workplace conduct. Still, the courts have determined that in administering the threshold test, the bar cannot be set too high and the expression “relates to a matter of public interest” should be given a generous and expansive reading.[^6] On the other hand, a strictly private dispute such as a fee dispute between an expert and a lawyer has been held not to meet the test even though the public may have an interest in the ethical behaviour of lawyers.[^7]

[23] In my view, the expressions under consideration in this case do not meet the public interest test. The communication appears to have been primarily about disputes over pay in the context of the Plaintiffs’ employment by organizations in which the individual Defendants were involved.

[24] The Defendants argue that warning other women about perceived predatory and discriminatory behaviour at The Palace is communication on a matter of public interest. On the facts before me, however, I would still categorize this as a private dispute. There is no public debate about whether workplace harassment, sexual harassment or dishonesty in the nightclub industry should be permitted. These are, if they occurred, either criminal, contrary to provincial employment legislation or both. There is no aspect of political speech fundamental to the functioning of a democracy involved in these postings on social media. Although some of the postings accuse the Plaintiffs of being “colorist” and discriminating against Black women working in the club, it would be hard to categorize the impugned communication as public advocacy.[^8]

[25] I recognize that the definition of “communication on a matter of public interest” is not a bright line. It is context specific and dependent on various factors. In particular, it is “determined by consideration of the particular expression in question and not the topic of that expression.”[^9] Posting derogatory remarks about The Palace and its owners and expressing personal dislike and animosity towards them is not so far as I can determine “communication on a matter of public interest”.

[26] I would dismiss the Motion as failing to engage s. 137.1(3). In case I am in error on this point, however, I will proceed with the additional steps in the analysis. As I will explain, I would dismiss the anti-SLAPP Motion even if the statute is engaged on the threshold step.

[27] The first question is whether there are grounds to believe the case has substantial merit. As the law stands in Ontario, a successful defamation action requires only three things. Firstly, the impugned words must be defamatory in the sense that they would lower the plaintiffs’ reputation in the eyes of a reasonable person. Secondly, the words must relate to the plaintiff. Thirdly, (for libel) the words must have been communicated to at least one other person. If those three elements are established, then falsehood and damage are presumed.[^10] The tort, once established, is one of strict liability and the onus then shifts to the defendants who must advance a defence to escape liability.[^11]

[28] In this case there is no doubt that the Defendants posted the statements on social media, that they refer to the Plaintiff and at least the most serious allegations are defamatory. This satisfies the standard enunciated in the Pointes decision, that the “claim be legally tenable and supported by evidence that is reasonably capable of belief”.[^12]

[29] The Court must then consider if there are “grounds to believe” that the defendant “has no valid defence”. As Pointes also teaches, this does not require the plaintiff to anticipate every defence that might possibly be advanced. Rather, the defendants must first “put in play the defences it intends to present and the responding party (ie plaintiff) must then show that there are grounds to believe that those defences are not valid”.[^13]

[30] Ms. Okoye depends on defences of “Justification” (substantial truth) and “Fair Comment”. Ms. Singaye depends on the defences of “Fair Comment” (“commentaire loyal”) and “Responsible Communication on a Subject of Public Interest” (“defence de la communication responsible sur un sujet d’intérêt public.”).

[31] To some degree the balancing of interests encapsulated in the anti-SLAPP legislation is already inherent in the law of defamation. As the Supreme Court stated in Torstar, “the law of defamation does not forbid people from expressing themselves … it merely provides that if a person defames another that person may be liable to pay damages … for the harm caused to the other’s reputation …[but] if the defences available to a publisher are too narrowly defined, the result may be libel chill”.[^14]

[32] The pertinent defences relied upon by the Defendants include justification and fair comment. Both of these require that the allegation be truthful. For justification, the truth of the statement must be proven. For fair comment, it must be shown that the opinion expressed is one that could reasonably be held based on facts that are probably true.

[33] For justification, partial truth is insufficient.[^15] The Defendant must show that the words complained of were actually true. On the facts before me, Ms. Okoye cannot show that the Plaintiffs are literally thieves or even that they owe money to women all over town. An example of a partial truth is the fact that one of the Defendants is in a relationship with a woman who is employed at the Palace. There is no admissible evidence on this Motion to prove that the owners of The Palace are habitually having sex with the “bottle girls” or are sexual predators. In the case of Ms. Singaye, she cannot prove that the Plaintiff is a “rapist”. The only evidence in support of that assertion is found in anonymous postings on social media which the Defendant reposted. For purposes of this Motion, she was unable to find a single witness willing to swear an affidavit asserting the truth of the allegations. Anonymous hearsay evidence is not admissible to prove the truth of its contents.

[34] It might be possible to admit anonymous social media postings for the defence of fair comment if the Defendant could prove that she reasonably believed the assertions to be true. There is however no evidence demonstrating that the Defendant believed these allegations in good faith. Her complete inability to produce any witness who would or could admit to posting the information and to explain why it was posted is a significant problem even at the stage of this Motion. There is no admissible evidence to demonstrate that these allegations.

[35] Fair comment as a defence will also fail if the Plaintiff can show malice. Both of the Defendants were involved in pay disputes in which they were either unhappy with the delay in getting paid or in the case of Ms. Singaye, disputed whether some of her work for Africa Live was supposed to be paid or volunteer. The evidence strongly supports an inference that smearing the character of the Plaintiffs on social media was fuelled by the pay dispute and was either designed to pressure the Plaintiffs or was intended as revenge for the imagined wrongs. In the case of Ms. Okoye, it appears that when she was employed, someone else entirely was responsible for payroll. The evidence could support findings of animus or malice.

[36] In my view there is a strong possibility that these defences will fail. In conclusion, the requirements of s. 147.1(4) are met. At this preliminary stage of the proceeding, there are grounds to believe that the action has merit and the Defendants do not have a defence that will succeed.

[37] This brings the Court to the balancing exercise. Here, the Court must weigh the public interest in permitting defamation law to function as it is designed to do against the public interest in not allowing litigation to be used to chill the exercise of free speech. There is no public interest in promoting or permitting spreading of malicious falsehood online or in any other forum.

[38] Cyberbullying and cyberdefamation are serious issues. There is evidence to suggest that the Plaintiffs suffered real harm to their reputations as businessmen and philanthropists. In my view the issue of the appropriate remedy for gratuitously smearing the reputation of an individual involved in a pay dispute is a significant concern. It is in the public interest to allow the Plaintiffs to pursue an appropriate remedy including not just damages but the injunctive relief they require to have all copies of the allegations removed from social media platforms.

Conclusion

[39] In conclusion, the anti-SLAPP Motion is dismissed. I find that s. 137.1 of the Courts of Justice Act is not triggered on the facts of this case. Even if the section was triggered, however, I find that the action should not be dismissed after applying the test set out in s. 137.1(4).

[40] The Plaintiffs (responding parties) have successfully resisted the Motion. Had they succeeded, the Defendants indicated they would have sought both costs under subsection (7) and damages under subsection (9).

[41] There is a presumption against awarding costs to the respondents on this Motion under subsection (8) of the legislation but I did not hear submissions on costs. If the Plaintiffs wish to argue for costs of the Motion and advise the Court that they wish to do so by May 2, 2025, I will entertain written submissions from all parties. If I do not hear otherwise by May 2, then pursuant to subsection 137.1(8) there will be no costs of the Motion.

Justice C. MacLeod
Date: April 24, 2025

[^1]: R.S.O. 1990, c. C.43 as amended – these provisions were added by the Protection of Public Participation Act, 2015, S.O. 2015, c. 23, s. 3. [^2]: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587 [^3]: Canadian Union of Postal Workers v. B'nai Brith Canada, 2021 ONCA 529, para 9 [^4]: Hansman v. Neufeld, 2023 SCC 14, paras 53, 79, 91 [^5]: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, para 29 [^6]: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, paras 30 & 31 and 2110120 Ontario Inc. v. Buttar, 2023 ONCA 539, paras 38-42 [^7]: Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730 [^8]: Echelon Environmental Inc. v. Glassdoor Inc., 2022 ONCA 391 [^9]: Echelon Environmental Inc. v. Glassdoor Inc., 2022 ONCA 391, para 11 [^10]: Grant v. Torstar Corp, 2009 SCC 61, [2009] 3 SCR 640, para 28 [^11]: Grant v. Torstar Corp, 2009 SCC 61, [2009] 3 SCR 640, para 29 [^12]: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, paras 49, 54 [^13]: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, para 56 [^14]: Grant v. Torstar Corp, 2009 SCC 61, [2009] 3 SCR 640, para 2 [^15]: Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, para 108