Zeppa v. Rea, 2025 ONSC 3253

COURT FILE NO.: CV-18-00609039-0000
DATE: 2025-06-02
ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:
Christopher Zeppa, Plaintiff
– and –
Karen Rea, Defendant

Appearances:
Emilio Bisceglia and Adraina Di Biase, for the Plaintiff (Responding party)
Carlo Di Carlo, for the Defendant (Moving Party)

Heard: April 23, 2025
Reasons for Judgment by: Lorne Brownstone
Released: June 2, 2025

Introduction

[1] In 2017, City Park (Town Crier) Homes Inc. (“City Park”) sought a zoning change and an amendment to the City of Markham’s Official Plan from the Markham City Council. City Park needed the approvals to subdivide and develop a parcel of land it owned. The plaintiff, Mr. Zeppa, is a shareholder of a shareholder of City Park. The defendant, Karen Rea, is a Markham city councillor who opposed the development and voted against it at the city council meeting. Councillor Rea was outvoted, and the council approved the amendment and zoning changes.

[2] City Park’s development project was controversial. Some of Councillor Rea’s constituents opposed the project. Councillor Rea met, corresponded with, and assisted the residents about appealing Council’s approval. The residents’ appeal of the approvals was ultimately dismissed for lack of standing.

[3] In March 2018, while the appeal was pending, Mr. Zeppa sued two residents who had opposed and sought to appeal the approvals of City Park’s development, seeking $10,000,000 in damages (“The Residents’ Action”). The residents brought a motion to dismiss the Residents’ Action under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, the anti-SLAPP provisions that are at issue in this motion. The Residents’ Action was settled by Mr. Zeppa withdrawing it and paying the residents $100,000 in legal costs.

[4] On October 27, 2018, about two weeks after the residents’ appeal had been dismissed and very shortly after Councillor Rea had been re-elected to council, Councillor Rea and Mr. Zeppa ran into each other at a bar in Markham. While the exact words exchanged between the parties are in dispute, after the exchange, Councillor Rea went to the police and advised them that Mr. Zeppa had threatened her. The police told her that the conduct she described did not constitute criminal behaviour.

[5] Mr. Zeppa complained to the Integrity Commissioner about Councillor Rea’s conduct at the bar and her report to the police. The Commissioner found that Councillor Rea was disrespectful, lacked appropriate decorum at the bar, and had thereby breached Markham’s Code of Conduct. The Integrity Commissioner recommended that Councillor Rea be reprimanded. City Council decided not to issue any sanction to Councillor Rea.

[6] Mr. Zeppa also started this action against Councillor Rea. The original statement of claim sought damages of $1,000,000 for libel and slander and $100,000 in punitive damages. Twenty-one months later, Mr. Zeppa served a fresh as amended statement of claim seeking general damages in the amount of $10,000,000, as well as the previously sought damages for libel and slander and punitive damages. The amended claim asserted additional causes of action, including breach of fiduciary duty, interference with economic relations, champerty and maintenance, and misfeasance in public office.

[7] In 2022, Councillor Rea moved to dismiss the claim under the anti-SLAPP provisions of the Courts of Justice Act. The motion judge found that the expression at issue did not relate to a matter of public interest. The Court of Appeal overturned that finding and determined that Councillor Rea’s expression at issue in the proceeding relates to a matter of public interest: Zeppa v. Rea, 2023 ONCA 668, 168 O.R. (3d) 481. The Court of Appeal remitted the motion to a different judge of this court to apply the remainder of the anti-SLAPP provisions in light of its finding that Councillor Rea has met her burden on the first part of the test.

[8] For the reasons that follow, I grant Councillor Rea’s motion and dismiss the action against her.

The Statutory Regime

[9] The anti-SLAPP provisions in the Courts of Justice Act have received much judicial attention. Their purpose is explicit and is expressed as follows:

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.

[10] That is, the legislation is meant to discourage litigation that is brought to deter someone from expressing a position on, or participating in, matters of public interest, rather than to vindicate a plaintiff’s bona fide claims: 1704604 Ontario Limited v. Pointes Protection Association, 2020 SCC 22, at para. 2; Marcellin v. London (Police Services Board), 2024 ONCA 468, at para. 8.

[11] The process to be followed by the motion judge on a motion to dismiss a lawsuit on the basis that it is a “strategic lawsuit against public participation” is established in subsections 3 and 4. They provide as follows:

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that, (a) there are grounds to believe that, (i) the proceeding has substantial merit, and (ii) the moving party has no valid defence in the proceeding; and (b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

[12] The moving party bears the burden of demonstrating that the proceeding arises from an expression that relates to a matter of public interest. As noted above, the Court of Appeal has determined that Councillor Rea has met that burden in this case.

[13] This court’s job, then, is to apply subsection 4. The burden for establishing that the elements of this subsection have been met shifts to the responding party – here, Mr. Zeppa. The test set out in subsection 4 is conjunctive. However, the appellate courts have cautioned that the bar in s. 137.1(4)(a) cannot be set too high because s. 137.1(4)(b) is the “crux of the analysis”; it allows and requires the court to consider “what is really going on” in the litigation. It is here that the court balances the public interest in allowing meritorious claims to proceed and the public interest in protecting expression on matters of public interest: Pointes Protection Association, 2020 SCC 22, at paras. 18, 73, 81; Marcellin, 2024 ONCA 468, at para. 11.

[14] The motion is not to be treated as a pleadings motion or a summary judgment motion. While the court may engage with the record, a “deep dive” like that required in a summary judgment motion is not what is envisioned; rather, a more limited weighing of the evidence is appropriate: Pointes, 2020 SCC 22, at paras. 50-52.

[15] However, bald assertions are insufficient, and a limited weighing of credibility may be warranted: Pointes, 2020 SCC 22, at para. 52.

Substantial Merit (s. 137.1(4)(a)(i))

[16] The two elements of s. 137.1(4)(a)(i) are “grounds to believe” and “substantial merit”.

[17] The parties agree that “grounds to believe” is a lower standard than “balance of probabilities” but is more than mere suspicion: Pointes, 2020 SCC 22, at para. 40. There must be some basis in the record and the law to support the belief, in the context of the proceeding and the stage it is at, that the legislated criteria have been met. The record before the court will be limited and will not allow for ultimate adjudication of the issue, but the court is to inquire beyond the pleadings: Pointes, 2020 SCC 22, at paras. 38, 39, 42.

[18] “Substantial merit” must be more than mere technical merit: Pointes, 2020 SCC 22, at paras. 16, 47. Merit refers to the prospect of success. A plaintiff must demonstrate he has a legitimate claim of which he should not be unduly deprived. However, a plaintiff does not need to go so far as to prove the claim is likely to succeed, or that he has a strong prima facie case. Rather, the claim must have a real prospect of success; it must tend to weigh more in favour of the plaintiff. The claim must be legally tenable and supported by evidence that is reasonably capable of belief: Pointes, 2020 SCC 22, at paras. 46, 48-49, 51.

[19] A claim with merely some chance of success is not sufficient to prevail: Pointes, 2020 SCC 22, at para. 50. However, the court is to undertake only a preliminary assessment of the claim and defences to determine the prospect of success: Teneycke v. McVety, 2024 ONCA 927, at para. 36.

[20] In the case at bar, the Court of Appeal noted as follows:

[28] There are other issues that are raised by the claims in this action. They include whether the respondent can advance claims that would appear, on their face, to belong to City Park; whether the appellant can be found to owe a fiduciary duty or a duty of good faith to the respondent (or any other member of the public); whether the actions of the appellant could constitute interference with economic relations or whether they could constitute champerty and maintenance. None of those issues, and others, are properly considered at this [i.e., the s. 137.1(3)] stage of the proceedings. They are properly considered when the factors in s. 137.1(4) are evaluated, especially the factor of substantial merit. On that latter factor, there must be a basis in the record and the law for finding that the underlying proceeding has substantial merit: Pointes at para. 39.

[21] I will now apply these principles to the causes of action Mr. Zeppa asserts in the claim: defamation, breach of fiduciary duty, interference with economic relations, champerty and maintenance, and misfeasance in public office.

The Defamation Claim

[22] Mr. Zeppa complains of two expressions in his defamation claim. His pleading states:

9. The Plaintiff, Zeppa pleads that as result of the foregoing [a description of the altercation at the bar and the report to the police], Councillor Rea has made a number of false and defamatory accusations against the Plaintiff, Zeppa including but not limited to the following (collectively the “False and Slanderous Statements”): (a) Contacting the YRP [York Regional Police] and falsely accusing the plaintiff of a crime and/or the commission of a criminal offence, namely, falsely stating that the Plaintiff had made threatening statements to her; and (b) Councillor Rea has threatened that she “will go to the media” with “information” about the Plaintiff, Zeppa and his businesses.

[23] The pleading later alleges that Councillor Rea spearheaded a media campaign to “malign and misrepresent the reputation of City Park and Zeppa as a result of matters relating to the Appeals.” There is some evidence that Councillor Rea was speaking with residents about going to the media with a story about City Park’s development plans to demolish a heritage building on the Town Crier site. There is no evidence of defamatory statements to the media or defamatory media coverage.

[24] Councillor Rea identified the following two “expressions” at issue: first, her continued opposition to the development after city council granted its approvals; and second, her report to the York Regional Police.

[25] Mr. Zeppa relies on Councillor Rea’s conduct after City Park succeeded in gaining approvals from the council. He argues that her conduct during this period should be viewed in totality as expression. He argues that her expression includes the following:

• Telling Mr. Zeppa that the council’s approval of his requests would be appealed;
• Using residents as “straw men” to launch the appeals, advising the residents how to manage and circumvent requirements of the appeal, and supporting the residents’ defence of the Residents’ Action;
• Using the city of Markham’s resources to assist with the appeals;
• Telling the mayor that if he did not assist in getting Mr. Zeppa to drop the Residents’ Action, she would go to the press with things she knew;
• Engaging in communications about the issues through her personal text and email co-ordinates, not her official Markham councillor email address;
• Interfering with city council staff, asking them to delay consideration of a demolition permit;
• Financially contributing to the residents’ appeals of the approval; and
• Trying to get other developers to buy the property.

[26] As noted above, Mr. Zeppa also claims that Councillor Rea verbally accosted him and demonstrated aggressive and harassing behaviour towards him at a bar in Markham on October 27, 2018. He pleads no details of statements made at the bar.

[27] Mr. Zeppa argues there are grounds to believe there is substantial merit to his defamation claim. He claims there are three credible sources to support this claim – the police report, the Integrity Commissioner’s report, and an expert opinion he has submitted from Kyle Rae, a former Toronto City Councillor.

[28] Councillor Rea argues that Mr. Zeppa has not demonstrated there are grounds to believe there is substantial merit to the defamation claim for the following reasons:

• The defamation claim is improperly and insufficiently pleaded. The claim does not even pass the bar of “technical merit”; and
• The defamation claim is, in substance, a claim that City Park’s, not Mr. Zeppa’s, reputation has been damaged. Mr. Zeppa has no demonstrated personal claim.

The Incident at the Bar and the Report to the Police

[29] The parties agree about parts of their interaction at the bar. Mr. Zeppa was entering the bar with a group that included two minors. Councillor Rea asked Mr. Zeppa whether he was going to congratulate her on having been recently re-elected for four more years. Mr. Zeppa states that his response was, “enjoy it while it lasts.” Councillor Rea says that Mr. Zeppa stated, “let’s see if you last that long,” to which she replied, “is that a threat or a promise?” Mr. Zeppa’s reply was, “I don’t make threats, only promises.” Councillor Rea told Mr. Zeppa she felt threatened by him.

[30] Video footage shows Councillor Rea pointing her finger at Mr. Zeppa and returning to do so again after she first seemed to be leaving.

[31] Following the incident, Councillor Rea attended the York Regional Police and stated she felt threatened and intimidated by Mr. Zeppa. She described her version of what was said at the bar, as set out above.

[32] The police report sets out Councillor Rea’s version of events and states:

Police explained to the complainant that what transpired does not constitute uttering threats. The complainant clarified that she did not feel a genuine threat to her safety, but felt the developer’s intimidation tactics were inappropriate and wished for police to explain that to him. The police advised the complainant that if she has any more direct or indirect interactions with the developer, that she should document them in the event any further action by the developer constitutes harassment.

[33] Mr. Zeppa spoke to the police later that day and recounted his version of events. The police report notes that “there are two conflicting stories. However, no criminal offence has taken place.”

[34] I note the police had reached this conclusion based on Councillor Rea’s version of events, and had communicated that conclusion to her before speaking to Mr. Zeppa.

The Integrity Commissioner’s Report

[35] The Integrity Commissioner found that Councillor Rea behaved with a lack of appropriate decorum at the bar. The Commissioner concluded that her conduct at the bar was inappropriate and disrespectful. The Commissioner found, based on written statements and interviews, that Mr. Zeppa did not threaten Councillor Rea, “irrespective of whether she perceived his words as such.”

[36] In reaching this conclusion, the report states in part as follows:

While I will accept and acknowledge that Councillor Rea may have felt uneasy in the circumstances, I find that the incident at the Duchess, more specifically the exchange of dialogue between the Complainant and Councillor Rea, did not justify Councillor Rea’s actions.

Based on the aggregate of evidence presented by the Parties, I am inclined to believe that Councillor Rea did not act with proper decorum, and that she demonstrated disrespectful behaviour towards the Complainant and his companions in a public setting. I am persuaded by the evidence in support of the Complainant’s position that he did not threaten Councillor Rea, irrespective of whether she perceived his words as such. Councillor Rea’s lack of appropriate decorum publicly brought negative attention to the Complainant and his group, which included two minors. I find that Councillor Rea’s display of actions in the Duchess contravene Section 17 of the Code.

Kyle Rae’s Opinion

[37] Kyle Rae is a former Toronto City Councillor. Given the similarity between his name and that of the defendant, I will, for clarity, refer to him as Kyle Rae. Kyle Rae’s expert opinion opens as follows:

As counsel for Mr. Chris Zeppa in the above matter you asked me for my opinion or what concerns if any I would have with the conduct or actions of Councillor Karen Rea in her dealings with Mr. Zeppa; whether her conduct met the standard of care and respect that a councillor serving their constituents need in a conscientious and diligent manner, with integrity and transparency and again doing so to promote public confidence and respect.

[38] Kyle Rae found a series of Councillor Rea’s comments and actions problematic as they relate to the Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50. First, Kyle Rae was concerned that Councillor Rea was shopping around for other developers of the property, which he found especially troubling because she is a real estate agent. He speculated that perhaps she would benefit as a real estate agent if a different buyer for the property were found. His report goes on to speculate about how Councillor Rea might be hoping for a new crop of city councillors to be elected, who would vote with her on reversing earlier decisions.

[39] Kyle Rae continued with this speculation as follows:

It is clear to me that Council made its decision without an official ratepayer input due to the decision of that ratepayer association to remain silent. I would gather from this that the ratepayers must have seen merit in the proposal. Believe me, after 19 years of representing downtown Toronto a silent ratepayer group is extremely unusual.

[40] Kyle Rae’s report further speculates that Councillor Rea was anxious about her re-election and that she manufactured opposition to the development for her own electoral benefit. He also was critical of council’s decision not to reprimand Councillor Rea. He wrote:

Upon what grounds could Councillor Rea possibly justify her refusal to be civil with Mr. Zeppa. … It is a pity that City Council didn’t take the opportunity to reprimand her as the Integrity Commissioner had advised. It can be difficult for politicians to sanction each other, but when asked to by a statutory official one would have thought that the club would heed the call.

[41] Kyle Rae’s report concludes that Councillor Rea’s conduct fell below the standard of care expected of municipal councillors in their public functions.

Governing Law

[42] There are two hurdles for Mr. Zeppa in his defamation claim. The first is the pleading, and the second is the rule in Foss v. Harbottle (1843), 67 E.R. 189 (Court of Chancery).

The Pleading

[43] Defamation is to be pleaded with particularity. The words pleaded are to be included in the claim, if not verbatim, then with sufficient particularity to enable the defendant to respond: Raymond E. Brown, Brown on Defamation, 2nd ed. (Toronto: Thomson Reuters, 2017), at § 19.4. There has been some relaxation of the strict pleading requirements, particularly when the exact words are not known to the plaintiff: The Catalyst Capital Group Inc. v. Veritas Investment Research Corporation, 2017 ONCA 85, at paras. 20, 22-29. In such a case, there should be a pleading of to whom those statements were made, which normally requires context or at least pleading a “coherent body of fact surrounding the incident such as time, place, speaker, and audience”: Catalyst, at para. 28, citing Magnotta Winery Ltd. v. Ziraldo.

[44] However, Mr. Zeppa knew the words Councillor Rea used to the police and ought to have pleaded them. He has not pleaded all the particulars within his knowledge. With respect to paragraph 9(b) of his statement of claim – the allegation that Councillor Rea has threatened that she “will go to the media” with “information” about Mr. Zeppa and his businesses – there is no pleading of any context or coherent body of facts surrounding the incident. There is no detail at all. Indeed, the record only discloses one statement about Councillor Rea threatening to go to the media; this was in relation to the mayor of Markham, not Mr. Zeppa. When asked about this in oral argument, counsel did not point to a statement with respect to the media and Mr. Zeppa.

[45] I do not accept Mr. Zeppa’s arguments that the police report, the Integrity Commissioner’s report, and the report of Kyle Rae support his defamation claim.

[46] Mr. Zeppa argues that Councillor Rea defamed him by making a false and malicious report to the police and that this is supported by the police not proceeding with criminal charges.

[47] However, Councillor Rea told the police her version of the words exchanged at the bar. She told them she felt threatened. She told them she did not fear for her bodily safety, and she did not allege that Mr. Zeppa made specific physical threats. That is, she said she felt threatened, but she did not overstate her fears. She was told the conduct she described did not amount to criminal conduct and accepted that information.

[48] The fact that conduct does not amount to criminal conduct does not make a report to the police of that non-criminal conduct false, malicious, or defamatory.

[49] With respect to the Integrity Commissioner’s report, again, lacking respect and decorum is not the same as defamation. The Commissioner did not find that Councillor Rea did not feel threatened; rather, the Commissioner found that regardless of whether she felt threatened, she behaved at the bar in a manner that contravened the Code of Conduct.

[50] I further find that there are significant problems with the proposed opinion evidence of Kyle Rae. First, the report claims to be a report on the standard of care owed by municipal councillors. However, councillors are protected from negligence actions under s. 448 of the Municipal Act, 2001, S.O. 2001, c. 25, when acting in good faith. Kyle Rae does not appear to opine, at least directly, on whether Councillor Rea was acting in bad faith, which would make the statutory immunity inapplicable. Nor do I believe that his evidence on whether Councillor Rea was acting in bad faith would be admissible had he attempted to provide it.

[51] This evidence would not pass the requirements of the reception of expert evidence under the tests in R. v. Mohan and White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. First, the evidence is not necessary. It is not for Kyle Rae to draw conclusions about Councillor Rea’s conduct and whether she acted in bad faith; that is the job of a court.

[52] Second, with respect to Kyle Rae’s existing report, regardless of whether he implies that Councillor Rea acted in bad faith, I find that the speculation referred to above shows that Kyle Rae is not an impartial expert. Rather, he is willing to draw conclusions based on pure speculation that is not supported in evidence. His report reads as advocacy, not a report of an expert.

[53] I find that Kyle Rae’s evidence is therefore inadmissible.

The Rule in Foss v. Harbottle

[54] In addition to the issue about the defamation claim not being properly pleaded, Councillor Rea argues that the claim is, in substance, a claim that City Park’s reputation, not that of Mr. Zeppa, has been damaged. Paragraph 9 of the claim, which I have considered above, is the only portion of the claim that relates to Mr. Zeppa personally.

[55] However, in support of his claim, Mr. Zeppa relies on the totality of Councillor Rea’s conduct after the approvals were granted, not just the incident at the bar and the report to the police. The conduct to which he refers, namely Councillor Rea’s support of the appeals and interference with the development, is conduct aimed at the development. The lands to be developed belong to City Park. Mr. Zeppa is a shareholder of a shareholder of City Park.

[56] The rule in Foss v. Harbottle provides that individual shareholders of a corporation do not have a cause of action for wrongs done to the corporation. Any action alleging such losses must be brought by management of the corporation or through a derivative action: Meditrust Healthcare Inc. v. Shoppers Drug Mart, at para. 15, citing Hercules Managements Ltd. v. Ernst & Young.

[57] Mr. Zeppa states that he is known as the face of City Park and of the development at the heart of this dispute. He relies on Montour v. Beacon Publishing Inc., 2019 ONCA 246, to argue that because he and City Park are so closely tied in the eyes of the public, any harm caused by Councillor Rea to City Park is equally caused to Mr. Zeppa.

[58] In Montour, however, the article that led to the defamation claim named both the corporation and the individuals; crucially, both the corporation and the individuals were plaintiffs. The impugned article connected both plaintiffs to organized crime, terrorism, and tobacco smuggling. The defendants argued that the plaintiff corporation had not suffered serious harm, as the corporation had not suffered financial losses and a corporation cannot suffer hurt feelings. The corporation argued that the publication might damage its relationship with tobacco farmers and would raise concerns within the Six Nations community.

[59] The court in Montour noted, at para. 35, that “[s]ometimes a false statement may be supposed to have such a serious impact upon reputation that harm may be presumed, and weighed in the balance for the purposes of s. 137.1(4).” The court concluded that in the case before it, a trier of fact might conclude that one or both plaintiffs had suffered significant harm. The court stated at para. 41:

For the purposes of the Anti-SLAPP motion, I would not differentiate between the corporate and individual respondents in this case. The individual respondent is so closely identified with the respondent corporation he founded, that a trier could conclude that defamatory statements about the corporation tarnish him to the same degree. In these proceedings, it would serve no purpose at this stage to screen out the action by one plaintiff, but not the other.

[60] In my view, the conclusion in Montour does not assist Mr. Zeppa. Montour does not do away with the rule in Foss v Harbottle. Rather, it holds that in the circumstances of that case, where the individual and the corporation were both plaintiffs and were both subjects of the impugned publication, there may well have been harm to the corporation, even in the absence of financial harm. In Montour, the court concluded that it served no purpose at the anti-SLAPP stage to screen out the action by the corporation and not the individual. Here, City Park is not a plaintiff. The actions Mr. Zeppa complains of, other than the restaurant interaction and report to the police, affect City Park’s interests, not those of Mr. Zeppa. Indeed, Mr. Zeppa would not answer questions on cross-examination about City Park’s shareholders; the evidence is that he is a shareholder of a shareholder of City Park, but he would not answer whether it was a sole shareholder or about the structure of City Park. He cannot stand in the place of City Park as plaintiff.

Breach of Fiduciary Duty

[61] Mr. Zeppa claims damages for breach of fiduciary duty by Councillor Rea. However, that claim suffers from the following frailties.

[62] Mr. Zeppa is not and never has been a resident of Markham. He is not a constituent of Councillor Rea or of Markham City Council.

[63] Councillor Rea has no obligation to act for the benefit of Mr. Zeppa, which obligation underlies a fiduciary relationship. Public law duties do not generally give rise to fiduciary relationships: The Toronto Party v. Toronto (City), 2013 ONCA 327, at paras. 37, 39. I agree with Councillor Rea that in this respect, an analogy to the Crown is useful: city councillors have a duty to act in the best interests of the municipality as a whole, which is generally incompatible with owing a duty to a specific individual’s interest (even if that resident were a resident of the community): Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, at para. 44; Municipal Act, 2001, at s. 224.

[64] I find there are no grounds to believe this claim has substantial merit.

Interference with Economic Relations

[65] Mr. Zeppa pleads that Councillor Rea has “negligently, recklessly and/or improperly tried to stop, thwart, interfere with and/or impede the Development of the Property”. He claims that Councillor Rea intended to injure Mr. Zeppa and his businesses and “their” plans to develop the property, and her conduct interfered with the development applications of the plaintiff’s businesses.

[66] This tort requires an intention to injure the plaintiff’s economic interests by illegal or unlawful means, and the plaintiff must have suffered economic harm or loss as a result.

[67] Mr. Zeppa put forth no evidence of damages to him personally until the day after cross-examinations were completed. He then adduced an affidavit that stated:

I also note that due to Councillor Karen Rea’s wrongful actions and the delay she caused to my Town Crier project, I personally was not able to earn my management fee in the sum of $1,000,000.00.

[68] He attached a single page document called “Schedule ‘D’ to the Joint Venture Agreement,” which he says confirmed his right to earn a management fee in connection with the project.

[69] Councillor Rea argues that this affidavit evidence should not be relied upon, given the timing of its delivery in breach of the Rules of Civil Procedure. Further, the affidavit does not even establish the harm – it only raises further questions.

[70] Mr. Zeppa states that Councillor Rea could have asked for further information or sought to cross-examine him on this fresh affidavit.

[71] I note that there is no indication of the identities of the parties to the agreement, what the joint venture lands are, or whether the schedule even attaches to a signed agreement. The schedule indicates that the manager will be paid when dwellings start to be constructed ($5,000 per dwelling), are sold ($15,000 each), and are occupied ($5,000 each). There is no calculation supporting the million-dollar figure.

[72] I find that the proposed evidence should not be relied upon, given its delivery after cross-examinations. Each party put forth their materials for the motion in accordance with a timetable. Each party prepared and conducted their cross-examinations based on the materials provided. Mr. Zeppa was not entitled to supplement the record the next day. Councillor Rea was not required to engage with Mr. Zeppa’s attempt to supplement the record in contravention of the Rules.

[73] Even if the evidence were to be relied on, it does not establish interference with Mr. Zeppa’s economic relations. There is no mention of how Councillor Rea’s conduct caused Mr. Zeppa losses. Given that Councillor Rea lost her vote at city council and the residents lost their appeal on a preliminary procedural basis, the connection between her actions and his damages is far from obvious and required evidence. Yet there is no connection expressly drawn or alleged between Councillor Rea’s conduct and the harm Mr. Zeppa belated claimed to have suffered.

[74] As with the analysis above with respect to Foss v. Harbottle, if there is a cause of action here, it belongs to City Park, not Mr. Zeppa.

[75] I find there are no grounds to believe this cause of action has substantial merit.

Champerty and Maintenance

[76] Mr. Zeppa claims that Councillor Rea had no legitimate interest in the outcome of the appeals of the city’s approval, nor in the Residents’ Action. However, she made financial contributions to this litigation ($500 to the Residents’ Action), and played an active role in their defence, constituting champerty and maintenance.

[77] Mr. Zeppa cites no cases in support of his claim that this constitutes champerty and maintenance.

[78] Where there are no profits to share, there can be no champerty: Frank v. Legate, 2015 ONCA 631, at para. 68.

[79] I also find that there are no grounds to believe there is substantial merit to the claim that contributing $500 to the defence of a $10 million dollar action brought against constituents, which was ultimately settled by an agreed-to dismissal in the face of the residents’ anti-SLAPP motion, would be considered maintenance. There are no grounds to believe that Councillor Rea had an improper motive in assisting the residents in a small way in defending an action against them. Defending the action is hardly the kind of “stirring up of strife” at which the prohibition on maintenance is aimed.

Misfeasance in Public Office

[80] Mr. Zeppa pleads that Councillor Rea deliberately, recklessly and/or negligently engaged in improper, illegal and/or unlawful conduct in the exercise of her public functions, having actual knowledge of or being willfully blind to that improper conduct, knowing that it was likely to cause harm to the plaintiff. Mr. Zeppa states that he and his businesses have been subjected to political interference by Councillor Rea in the applications. He pleads that she has demonstrated that she is biased by causing a spectacle at the bar, reporting false accusations to the police, interfering with his right to commerce and enterprise, and allowing her personal interest to conflict with her public role.

[81] On the latter allegation, although not pleaded, Mr. Zeppa alleges that because Councillor Rea is a real estate agent, she stands to gain from a different developer purchasing the property because then, perhaps, she would be engaged as a real estate agent to sell the homes developed on the property. This is nothing more than a bald allegation, which is insufficient to meet his burden: Pointes, 2020 SCC 22, at para. 52.

[82] Mr. Zeppa claims that Councillor Rea’s conduct constitutes deliberate, unlawful conduct in the exercise of her public functions and that she was aware that the conduct was unlawful and likely to injure the plaintiff: Odhavji Estate v. Woodhouse, 2003 SCC 69.

[83] Councillor Rea argues that there is no evidence that her conduct was motivated by malice. She argues that this is a high hurdle to overcome with a municipal councillor, as there is a presumption of good faith: Middlesex-London H. U. and Middlesex County v. I.F. Propco, 2018 ONSC 3229, at para. 118.

[84] Councillor Rea argues that this, too, is a claim that ought to be brought by City Park if it is to be brought at all. It cannot be brought by Mr. Zeppa.

[85] I agree that if there are grounds to believe that Councillor Rea’s conduct was aimed at injuring anyone or anything, it is City Park and its development, not Mr. Zeppa.

[86] In sum, I find that Mr. Zeppa has not established grounds to believe the claims against Councillor Rea have substantial merit for the reasons outlined above. However, given the legislative regime and the fact that s. 137.1(b) has been repeatedly held to be the “fundamental crux” of the court’s analysis, it is important to consider the entirety of the anti-SLAPP test: Pointes, 2020 SCC 22, at para. 18; Benchwood Builders, Inc. v. Prescott, 2025 ONCA 171, at para. 49. The strength of the claim will be a factor to be weighed under s. 137.1(4)(b).

Valid Defence (s. 137.1(4)(a)(ii))

[87] The “grounds to believe” analysis in paragraph 17 above applies equally to this provision.

[88] In Pointes, 2020 SCC 22, Côté J. noted that the word “no” in the phrase “no valid defence” is an absolute, so that if any valid defence exists, the plaintiff has not met its burden: at para. 58. This statement was recently qualified by the Ontario Court of Appeal in Benchwood Builders, Inc. v. Prescott, 2025 ONCA 171, where Lauwers J.A. noted at paras. 28-30 that the “no valid defence” provision has been given too much weight. Rather, where the defendant might have a valid defence – that is, where the defence has some merit but might not prevail – the analysis must proceed to the weighing section in s. 137.1(4)(b).

[89] Councillor Rea argues that, even if there were reason to believe the claim has substantial merit, she has valid defences to the claim. These are the defences of qualified privilege and justification. Mr. Zeppa argues that Councillor Rea’s actions were motivated by malice, so no valid defence exists.

[90] Mr. Zeppa claims that Councillor Rea acted with malice, which would defeat her defences and disentitle her from relying on the statutory immunity for city councillors. He alleges that Councillor Rea told the residents to lie in order to strengthen the likelihood of being granted standing on the appeals, to which Councillor Rea knew the residents were not entitled.

[91] Mr. Zeppa argues that Councillor Rea breached the Code of Conduct in various ways. Indeed, he complained to the Integrity Commissioner, who reports to City Council and who is responsible for investigating and reporting on Code of Conduct complaints. City Council voted not to impose the reprimand recommended by the Commissioner.

[92] Mr. Zeppa claims that Councillor Rea tried to blackmail the mayor of Markham by telling him that if he did not do something to assist with getting the Residents’ Action dismissed, she would go to the media with everything she knows.

[93] The claims that belong to Mr. Zeppa personally, and not City Park, are claims for defamation regarding the incident at the bar and the report to the police.

[94] Councillor Rea relies on the defence of qualified privilege for making a statement to the police in good faith: Cook v. Milborne, 2018 ONSC 419, at paras. 23, 25; Gittens v. Brown, at paras. 28-30. That defence can be defeated by malice.

[95] Councillor Rea also claims she has a justification defence, in that the words she spoke to the police were correct or substantially correct, especially viewed in context: DEI Films Ltd. v. Tiwari, 2018 ONSC 4423, at para. 30; Brown on Defamation, at § 10.4.

[96] Further, Councillor Rea argues that she has a valid defence of fair comment, as she was making a comment that was addressing a matter of public interest based on fact, and a reasonable person could honestly say Councillor Rea was being threatened by Mr. Zeppa: WIC Radio Ltd. v. Simpson, 2008 SCC 40, at paras. 26, 49.

[97] With respect to fair comment, subjective malice is never implied or presumed: Brown on Defamation, at §16.12. There were legitimate reasons to oppose the controversial development opposed by some residents and some Markham heritage staff.

[98] Councillor Rea was advised by a police officer that she consulted to report the incident. She argues that if she were motivated by malice, she would not have been so candid and careful to qualify her concerns to the police.

[99] I find that there are grounds to believe Councillor Rea has valid defences of qualified privilege in respect of the defamation claim and of statutory immunity, discussed in the analysis under s. 137.1(4)(a)(i) above, with respect to the non-defamation causes of action.

[100] However, it is important to conduct the weighing analysis required by s. 137.1(4)(b).

Weighing the Public Interest (s. 137.1(4)(b))

[101] As noted above, this provision has been described as the core of s. 137.1, as it engages in an open-ended way with the legislation’s purpose of screening out lawsuits that unduly limit expression on matters of public interest: Pointes, 2020 SCC 22, at paras. 62, 82. As the Supreme Court stated at para. 63, “[w]eighing the public interest in freedom of expression and public participation against the public interest in vindicating a meritorious claim is a theme that runs through the entire legislative history”. Particular attention is to be paid to the fact that the statute requires one interest to outweigh the other.

[102] Mr. Zeppa must show the existence of harm, and that the harm was caused by Councillor Rea’s expression: Pointes, 2020 SCC 22, at para. 68. He need not prove harm or causation but must provide evidence from which the court can infer the likelihood of the existence of harm and the causal link: Marcellin, 2024 ONCA 468, at para. 11; Pointes, 2020 SCC 22, at para. 71.

[103] The seriousness of the harm Mr. Zeppa claims to have suffered is relevant when determining whether the harm is “sufficiently serious” that it outweighs the public interest in protecting the expression. There must be sufficient evidence to allow the court to draw an inference of likelihood and of causation. Evidence of a causal link becomes especially important when there may be sources other than the defendant’s expression that causes the harm: Pointes, 2020 SCC 22, at paras. 70-72.

[104] Reputational harm is relevant to the harm inquiry. General damages are presumed in a defamation case, and this constitutes harm, although not necessarily serious harm: Marcellin, 2024 ONCA 468, at para. 89.

[105] Once harm is established, it is weighed against the public interest in protecting the expression. In this section, public interest is qualitative, unlike in s. 137.1(3). The quality and motivation of the expression are relevant to assessing the weight, or importance, of protecting it: Pointes, 2020 SCC 22, at paras. 73-75.

[106] The court is to consider the harm suffered or potentially suffered by Mr. Zeppa, the corresponding public interest in allowing the claim to continue, and the public interest in protecting the underlying expression: Pointes, 2020 SCC 22, at para. 79.

[107] Councillor Rea submits that “what is really going on” is that a developer, which she refers to as a prototypical anti-SLAPP party, is using litigation to achieve its ends by creating leverage and silencing or punishing critics. Far from being pursued to achieve a legitimate end, this is tactical litigation, serving an instrumental, not remedial, purpose.

[108] Mr. Zeppa agrees that this a case of “David against Goliath,” but argues that Councillor Rea is the Goliath. He argues that she has money, power, and authority and is using it to Mr. Zeppa’s detriment. He cautions the court against allowing the anti-SLAPP provisions to be used as a safe space for defamation or hateful, malicious attempts to inflict harm; this was not the legislation’s intended use: Paramount v. Johnston, 2018 ONSC 3711, at para. 37, citing Hudspeth v. Whatcott, 2017 ONSC 1708. Mr. Zeppa argues that the action raises a “significant matter of public importance; namely, the accountability of municipal councillors for conduct which is illegal, wrongful, unethical and contrary to codes of conduct.”

[109] Mr. Zeppa claims to have suffered personal reputational harm from Councillor Rea’s actions. I have reviewed Mr. Zeppa’s other claims of harm at paragraphs 67-73 above.

[110] As to the non-defamation claims, there is scant evidence of harm to either City Park or Mr. Zeppa, and virtually no evidence of a causal link between Councillor Rea’s conduct and the delay of the projects. Indeed, Councillor Rea and the residents lost their votes and appeals at every turn.

[111] I agree with Councillor Rea that the manner in which the evidence of personal harm was attempted to be adduced, as an afterthought, is an indication that the litigation was not advanced in order to redress harm.

[112] In weighing the public interest in freedom of expression and public participation against the public interest in vindicating a meritorious claim, I conclude that what is really going on is the developer is seeking to chill future expression that is in opposition to its plans.

[113] I do not accept Mr. Zeppa’s contention that harm to expression in this case is minimal, because Councillor Rea was free to express herself during the municipal process with no impediment (a fact with which Councillor Rea freely agreed). In my view, the court must consider the harm of a potential chilling effect of litigation of this kind on both Councillor Rea and others who may be similarly situated in the future: Pointes, 2020 SCC 22, at para. 80. Protecting the ability of elected councillors to vote with their conscience and participate in political decision-making is of high importance. Protecting and encouraging citizens to report matters to the police is also of high importance.

[114] On the other side of the scale, I find that the claim is not meritorious. I have reviewed above the problems with the merits of Mr. Zeppa’s claims. I do not find that Mr. Zeppa is seeking redress for personal harms. This is not a case like Teneycke, on which Mr. Zeppa relies, where the claim alleged specific comments aimed at Mr. Teneycke’s reputation, including suggestions of criminal conduct and corruption. It is hard to locate the alleged defamatory comments in this case.

[115] The following are indicia that the litigation was brought not for legitimate redress, but for an instrumental purpose:

• Mr. Zeppa only put forth support for personal damages after cross-examinations, when presumably he recognized that this was missing from his litigation. Even then, the single paragraph in an affidavit and the single excerpt from an unknown agreement are, to put it mildly, scant evidence of harm;
• Mr. Zeppa had sued the residents for the same $10 million dollar amount for pursuing an appeal of the approvals;
• Mr. Zeppa did not plead specific defamatory words in support of his claim. The vagueness of the pleading is a sign that this is instrumental, not remedial, litigation. The looseness of the pleading is an indication that it was never about restoring his reputation;
• Mr. Zeppa made other fundamental errors in the claim, such as not advancing the claim on behalf of City Park (assuming he had the authority to do so).

[116] In my view, these factors demonstrate that Mr. Zeppa is not pursuing a serious claim, and that the litigation is being brought for tactical reasons, not for personal redress. The public interest in protecting city councillors’ rights to express their views and the interest of all members of the public in being able to report concerns to the police outweighs the interest in allowing Mr. Zeppa’s claim, which is of dubious merit, to proceed.

[117] Based on this analysis, I find that the concern for protecting expression outweighs the public interest in pursuing the claim in this case.

Disposition

[118] Councillor Rea’s motion is granted. The claim is dismissed. If the parties are unable to agree on costs, they may make submissions of no more than five pages, plus a bill of costs, to me by emailing my judicial assistant at linda.bunoza@ontario.ca. Councillor Rea shall provide her submissions by June 13, 2025, and Mr. Zeppa by June 24, 2025. There will be no reply submissions.

Lorne Brownstone
Released: June 2, 2025