Ontario Superior Court of Justice

Court File No.: CV-23-91907
Date: 2025/06/26
Between:
Prasanth Tella, Plaintiff
– and –
A.B., Defendant

Cheryl Letourneau, for the Plaintiff
Joanna Birenbaum and Vanshika Dhawan, for the Defendant
Heard: June 17, 2025

Reasons for Decision on Anti-SLAPP Motion

Justice I. Carter

Overview

[1] The Plaintiff commenced a defamation action against the Defendant A.B. in relation to comments made by her in relation to the Plaintiff, who is her former partner. The allegedly defamatory statements were made primarily to the Plaintiff’s employer, the Ottawa Police Service, but also to a few other persons in the community.

[2] In response, the Defendant has brought a motion seeking to dismiss the proceedings pursuant to s. 137.1(3) of the Courts of Justice Act, R.S.O. 1990, c C.43, a provision commonly referred to as “Anti-SLAPP.” In addition, she seeks an order anonymizing the proceedings in respect of her name and any information that would identify her, prohibiting the publication of any information that could identify her, and partially sealing the Court record in respect of her identity.

[3] As part of the motion record, the Defendant filed four affidavits: two from herself, one from an individual who has opined on cyber security matters and one from an expert in domestic violence, particularly as it relates to spouses of police officers. The Plaintiff seeks to strike paragraphs from the first three affidavits and the affidavit of the expert in its entirety.

[4] Although Anti-SLAPP motions were intended to be summary in nature, a considerable amount of evidence was led on this motion. Numerous affidavits. Transcripts of examinations of the parties. A significant number of documents. Much of this evidence goes deep into the weeds of the underlying action itself. Some of it is so peripheral that it would be difficult to even characterize it as relevant. The volume of evidence adduced at this hearing is contrary to the intent of the legislation.

[5] In addition, these proceedings have been further complicated by the Plaintiff’s motion to strike. It is a sign that the intended summary nature of the motion has been lost sight of. The resulting complexity is unnecessary and unhelpful.

[6] Fortunately, the issues on this motion are relatively narrow in scope. A determination can be reached based on the application of a portion of the evidence to the relevant legal principles. A decision on the application to strike is not required.

Legal Framework

[7] A succinct and excellent summary of the legal test to be applied in a motion made pursuant to s. 137.1 of the CJA can be found in the recent decision of Parrish v. R.K., 2024 ONSC 897.

[8] Under s. 137.1(3) the Defendant/Moving Party must establish on a balance of probabilities that (a) the Plaintiff’s lawsuit arises from statements the Defendant made, and (b) the statements relate to a matter of public interest. If the Defendant fails to do this, the motion is dismissed, and the action continues (Parrish at para. 10).

[9] If the Defendant satisfies this burden under s. 137.1(3), under s. 137.1(4) the burden shifts to the Plaintiff to establish that:

a. There are grounds to believe that the proceeding has substantial merit;
b. There are grounds to believe that there is no valid defence(s) to the claims; and
c. The harm suffered by the plaintiff as a result of the defendants’ expression is sufficiently serious that the public interest in permitting the plaintiff’s action to proceed outweighs the public interest in protecting the defendants’ expression (Parrish at para. 11).

[10] The burden under the merits-based hurdle is low. The motion is not a motion for summary judgment. It does not involve adjudication of the merits of the underlying action. Section 137.1 creates a screening process, used at an early stage of the proceeding, on a limited factual record, to identify and terminate litigation that would unduly limit expression on matters of public interest. The analysis must remain focussed on the statutory criteria and not devolve into a disguised adjudication on merits. The process is meant to be efficient and economical. A granular analysis, or a deep dive into the record is not required (Parrish at para. 12).

Does the Lawsuit Arise from Statements Related to a Matter of Public Interest?

[11] The first step in the analysis is to determine the expressions at issue. The Statement of Claim sets out what they are. The following has been plead:

6. Beginning in March of 2022, [A.B.] made the following statements to the Professional Standards Section of the Ottawa Police Service:
   (a) That in March of 2022 Prasanth was monitoring [A.B.] at 6179 Voyageur Drive through the Telus home monitoring system;
   (b) That in March of 2022, Prasanth had other members of the Ottawa Police Service monitoring [A.B.] and specifically Constable Cameron Downie;
   (c) That in March of 2022, Prasanth was not acting like himself and was not fit for duty;
   (d) That starting in March of 2022, Prasanth was harassing [A.B.] by monitoring her behaviour and following her;
   (e) That in April of 2022, Prasanth was suffering from mental health issues;
   (f) That in April of 2022, Prasanth sent a threatening letter to [A.B.] through his lawyer;
   (g) That Prasanth engaged in sexual assault against [A.B.];
   (h) That in November of 2022, Prasanth engaged in voyeurism against [A.B.]; and
   (i) That in February of 2023, [A.B.] made a written allegation against Prasanth stating that "Prasanth was abusive during our relationship", and "Prasanth committed various serious crimes against me during our relationship and even after."

7. Further, on or about April 24, 2023, [A.B.] attended at the residence of Dan Roy, a friend of Prasanth, and stated that Prasanth was mentally ill and not fit for duty as a Police Officer. In May or June of 2022, [A.B.] texted a friend of the Plaintiff, Brian Kemp, and communicated to him that Prasanth was mentally ill.

8. In addition to the previous defamatory statements, on or about February 26, 2023, [A.B.] texted the following statements to Mike Carrier, who is a mutual acquaintance of both parties:
   (a) "I escaped my abusers: Kelsey and Prasanth"; and
   (b) "Prasanth committed various serious crimes against me during our relationship and even after. Multiple police investigations have taken place and the most serious remains ongoing."

[12] There is no question that these constitute statements made by the Defendant. They fall into two categories: ones made to the Professional Standards Section of the Ottawa Police Service and ones made to individuals known to both the Plaintiff and the Defendant. Both parties led evidence with respect to additional statements made, primarily to the Ottawa Police Service in other contexts and to other police agencies. These statements are not the subject of the claim. Nevertheless, I have been invited to rule on them in the context of this motion. I decline to do so. On a motion brought pursuant to s. 137.1, the court makes a determination as to whether to dismiss a proceeding or not. It is not entitled to decide whether to dismiss some potential or imagined future proceeding.

[13] The fact that there are two categories of statements at issue in the underlying proceeding creates a difficulty at this first stage. I will begin with the statements made to the Professional Standards Sections. Some limited review of the background leading to these statements is required.

[14] The relationship between the parties ended in March 2022. On March 23rd, A.B. called the OPS seeking assistance. The transcript of the 911 call demonstrates that she was concerned about the Plaintiff’s behaviour, in particular that he was monitoring her and that this might be criminal harassment. Despite this, she stated that she did not want him charged. The police subsequently attended at A.B.’s home and advised her that this was a civil matter.

[15] On May 18th, she again called the police, raising concerns about new conduct which she believed amounted to criminal harassment. In a follow up phone call with an officer, in addition to discussing the potential harassment, she mentioned an incident of sexual assault and voyeurism, although she indicated she did not wish this pursued. In late June, A.B. was told that her May report to the police relating to monitoring/harassment had been closed as “inconclusive.”

[16] It is important to note at this point that none of these statements made to the police are the subject of the defamation action. The Statement of Claim is clear that the only statements at issue are the ones made to the Professional Standards Section.

[17] There is no evidence that she intended these calls or the subsequent follow up conversations to the officers as the commencement of a complaint under the Police Services Act, R.S.O. 1990, c P.15. Nevertheless, one was opened by the Chief of Police on June 23, 2022. It appears to have been precipitated by the earlier complaints she had made. Although she initially refused to participate in the proceedings, she eventually did so.

[18] In sum, A.B. made complaints to the police that were criminal in nature. They were investigated and found not to warrant charges. Nevertheless, an internal disciplinary investigation was launched as a result of them. It is only by placing the comments she made to the Professional Standards Section in their proper context that their public interest value comes fully into focus.

[19] As noted by the Ontario Court of Appeal in Zeppa v. Rea, 2023 ONCA 668, there is an obvious public interest in members of the public feeling free to report conduct which is of concern to the police. Members of the public must not feel that, in doing so, they may be exposed to litigation. The fact that the police determined that the actions complained of do not rise to the level of criminal threatening does not change the public interest in ensuring that such concerns are reported to the police and reviewed by them (para. 19). In my view, these comments apply equally to statements made in the context of a police disciplinary process that arises out of an initial criminal complaint.

[20] A.B.’s statements to the Professional Standards Section clearly relate to a matter of public interest. However, it is far less clear that her statements to Dan Roy, Brian Kemp and Mike Carrier do. I say so for the following reasons.

[21] In Parrish, Trimble J. noted that public interest has been found in cases where sexual violence has been reported to the police, to a segment of the population which might have an interest, to people from whom the Defendant has sought advice and to intimate partners and family member from whom solace is sought (para. 18). A.B.’s statements to these three individuals do not fall into any of those categories. According to her affidavit, A.B. made the statements to Dan Roy because he asked how the Plaintiff was doing and she was concerned about him. Again, with respect to Brian Kemp, she texted him out of concern. It is evident from the messages themselves that she is neither seeking advice nor solace. Finally, her evidence with respect to the Mike Carrier texts is as follows:

My intention in sending the message was to send an olive branch to him, due to our past poor relationship, to recognize the difficult relationships we had both left. I believed that Carrier might see our relationship differently and I was hoping for healing for both of us.

[22] While the threshold at the first stage is relatively low, the communications at issue must relate to a public issue. As noted by Gomery J. in Smith v. Nagy, 2021 ONSC 4265, not every allegation of sexual misconduct by one person against another engages the public interest, even if one or more of them is a public figure (para. 48). Here, the nature of the conduct referred to in the statements is vague. The statements were made to individuals, as opposed to a wider audience. The Plaintiff’s public profile is not high. The motivations behind the statements were personal to the parties. It is difficult to discern any public interest within the meaning of the legislation that is engaged.

[23] Most of the alleged defamatory statements in the Statement of Claim relate to a public issue but some do not. Section 137.1 requires a determination as to whether the “proceeding” arises from an expression made by the person that relates to a matter of public interest. Here, however, the proceeding arises from expressions that relate to a matter of public interest and from those that do not. What then to do?

[24] In Schwartz & Red Lake Outfitters v. Collette, 2020 ONSC 6580, at para. 124, the judge allowed one individual expression from a defamation claim to proceed to trial, while dismissing the claims related to all other expressions. The Ontario Court of Appeal reversed the result noting the entire action should have been dismissed because it was motivated by a desire to silence public interest expression. In so concluding, the Court clarified that it was not deciding whether, on a successful s. 137.1 motion, the court has the authority to delineate between claims that are found to be subject to the section and ones that are not (Schwartz v. Collette, 2023 ONCA 574 at para. 7).

[25] In the subsequent decision of The Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 381 (leave to appeal to SCC refused), the Ontario Court of Appeal appears to conclude that a defendant cannot bring a partial motion for dismissal of a cause of action, but has left open the broad question of whether a judge has the discretion to “prune” some expressions from a proceeding (paras. 145 and 146). The British Columbia Court of Appeal in Rooney v. Galloway, 2024 BCCA 8, interpreting similar legislation in B.C., agreed that a partial motion cannot be brought but found that it was within the discretion of the chambers judge to prune some expressions (paras. 135 to 143).

[26] Assuming that such discretion to prune is permissible in Ontario, I would decline to exercise my discretion to do so in the circumstances of this case. The heart of this action is the expressions to the Professional Standards Section. The expressions to the other individuals are limited, peripheral and in some instances ambiguous. The harm that has been plead almost exclusively stems from the expressions to the police officers. It is doubtful that the Plaintiff would have commenced an action based solely on these other expressions. As a result, I will consider the proceeding as a whole when applying the test under s. 137.1.

Grounds to Believe that the Proceeding Has Substantial Merit

[27] At this stage, the Plaintiff must satisfy the Court that there are grounds to believe that his claim has substantial merit. In this regard, “grounds to believe” means any basis in the record and law. To meet his burden, the Plaintiff must show that his defamation action has a “real prospect of success” and must be “legally tenable and supported by evidence that is reasonably capable of belief” (1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, at paras. 39 and 49).

[28] To succeed in defamation, the Plaintiff must establish three elements:

a. The words complained of were published, meaning that they were communicated to at least one person other than the plaintiff;
b. The words complained of referred to the plaintiff; and
c. The impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person (Grant v. Torstar Corp., 2009 SCC 61 at para. 28).

[29] In the Statement of Claim, the Plaintiff alleges that A.B. told his friend, Dan Roy, that the Plaintiff was “mentally ill and not fit for duty as a police officer.” No affidavit from Dan Roy was adduced in this motion. The Defendant denied that she made this statement. With respect to this expression, there are insufficient grounds to believe that it was actually communicated.

[30] In addition, the Plaintiff pleads that a text to his friend Brian Kemp, communicated to Kemp that the Plaintiff was “mentally ill” and as such defamatory of him. The text is part of the record. I have reviewed it carefully. A.B. raises concerns about the Plaintiff’s “well being” in the context of a public incident that had recently occurred. At the conclusion of the text, she seeks his permission before discussing anything further. There is no evidence that this permission was granted and that any further communications took place. I agree with the Defendant that an expression of concern about an individual’s well being in this context does not amount to grounds that it is defamatory.

[31] As previously noted, these particular expressions do not engage the public interest on their own. I have analysed them, however, because they are part of the proceeding, and the proceeding arises from other expressions that do engage the public interest.

[32] The Defendant concedes that the remaining expressions all meet the substantial merit test.

Grounds to Believe There Are No Valid Defences

[33] What remains are the statements to the Professional Standards unit of the OPS and the texts to Mike Carrier.

[34] Complaints made to and/or evidence given in a complaint to a quasi-judicial regulatory authority are protected by absolute privilege. This has been held to include statements made during a Police Services Act investigation (Byrne v. Maas). The Plaintiff argues that absolute privilege does not apply because the statements were “not restricted to judicial purposes”. I am uncertain as to what is meant by this. A.B. was asked to participate in the process. She initially refused but then eventually agreed. There is no evidence that her comments somehow fell outside the ambit of the investigation. To the extent that the Plaintiff is alleging malice, that argument has no merit. Malice cannot defeat a claim of absolute privilege.

[35] The Plaintiff has failed to establish that there are grounds to believe that there is no valid defence to claims relating to these expressions. Indeed, the prospect of success for the absolute privilege defence appears overwhelming.

[36] The expressions to Mike Carrier rest on a different footing. As they were made for the purpose of trying to repair the relationship, it is difficult to see how qualified privilege may apply. While the defence of truth may ultimately be raised, it has not been put in play at this stage. As a result, the Plaintiff has established that there are grounds to believe that there is no valid defence to these statements.

Conclusion on s. 137.1

[37] In my view, there is no rationale for proceeding to the public interest weighing stage in this matter. That is because the Plaintiff has failed to meet his burden on s.137.1(4)(a) with respect to almost all of the expressions at issue. As for the two expressions that would meet the criteria of the subsection, as I have earlier noted, they are not statements that engage the public interest. Section 137.1 would not apply to them at all if they had not been included in a Statement of Claim that otherwise included numerous expressions that did engage the public interest. Under the circumstances, the appropriate remedy is to dismiss the current action against the Defendant. This order is made, however, without prejudice to the Plaintiff to commence a new action dealing solely with the expressions to Mike Carrier should he so choose.

Publication Ban and Anonymity Order

[38] Finally, the Defendant seeks orders anonymizing the proceedings in respect of her name and any information that would identify her, prohibiting the publication of any information that could identify her, and partially sealing the Court record in respect of her identity.

[39] Based on the evidence filed on the application and applying the test as set out in Sherman Estate v. Donovan, 2021 SCC 25, I am prepared to make the first two orders sought. There is, however, insufficient evidence to take the more draconian step of sealing the Court record. No such order will be made.

Costs

[40] The parties are encouraged to agree on the quantum of costs. If they are unable to do so, the Defendant shall deliver costs submissions by September 2, 2025 and the Plaintiff party shall deliver responding costs submissions within 15 days of receipt of the submissions of the Defendant. Reply submissions, if any, are to be delivered within 5 days of receipt of the submissions on behalf of the Plaintiff. The initial and responding submissions are not to exceed five pages double spaced excluding costs outlines, offers to settle and authorities. Any reply submissions are not to exceed four pages. All submissions are to be sent to my attention by email to scj.assistants@ontario.ca.

Released: June 26, 2025
Justice I. Carter