Court File and Parties
Court File No.: CV-24-731906 Date: 2025-09-09 Superior Court of Justice – Ontario
Re: Around the World Early Learning Centre and Marko Pjescic, Plaintiffs And: Erin Sara-Anne Dobbin, a.k.a. Erin Dobbin, Kaitlyn Kunashko, a.k.a. Kaitlyn K, a.k.a. Kaitlyn Henry, a.k.a. Katelyn McIntyre, Prabhdeep Singh, Lisa Jeanette Martin, a.k.a. Lisa Flynn and Madeleine Wade, Defendants
Before: Pollak J.
Counsel: Arad Moslehi & Annelise Do Rio, for the Plaintiffs John A. Annen, for the Defendants
Heard: July 4, 2025
Endorsement
Introduction
[1] In this Action, the Plaintiffs claim that the Defendants published serious allegations about the Plaintiffs on Facebook, Google, and elsewhere on the internet (the impugned publications) without verifying the truth of those allegations. They claim those publications were defamatory, exaggerated, and a malicious and targeted attack on the business of the Plaintiffs.
[2] The Plaintiffs claim that the Defendants' impugned publications caused serious reputational and economic harm and were intended to disrupt the Plaintiffs' operations and discourage future clients from doing business with the Plaintiffs.
The Parties
[3] The Plaintiff, Around the World Early Learning Centre ("ATWELC"), is a licensed childcare facility in Peterborough, Ontario, that began operating on or about February 1, 2024, at 993 Talwood Drive following the closure of Happy Times daycare. The Plaintiff, Marko Pjescic ("Pjescic"), is ATWELC's co-founder and Director of Operations. He previously held a senior position at ESC Corporate Services Ltd ("ESC"). Tatiana Pjescic ("Tatiana"), a non-party and Pjescic's spouse, is also a co-founder of ATWELC.
[4] Plaintiff Pjescic and Tatiana own and operate ATWELC.
[5] The Defendants, Prabhdeep Singh ("Singh"), Erin Sara-Anne Dobbin ("Dobbin"), Madeleine Wade ("Wade"), Kaitlyn Henry, also known as "Kaitlyn K" ("Henry"), and Lisa Jeanette Martin also known as "Lisa Flynn" ("Martin"), are residents of the Province of Ontario.
[6] The Defendants all had an involvement with childcare either personally or professionally, mostly beginning at Happy Times prior to ATWELC's opening. Specifically, Madeline, Lisa, and Kaitlyn's children attended ATWELC, and Prabhdeep and Erin are Registered Early Childhood Educators ("RECEs").
[7] Lisa's child began as a student at Happy Times in January 2022, and continued at ATWELC when Happy Times closed.
[8] Erin began volunteering at Happy Times in September 2023, when her child started attending the centre.
[9] Madeleine had two children attend Happy Times and one child at ATWELC.
[10] All defendants admit that they made the impugned Publications to inform the public about the practices of child care at ATWELC.
The Plaintiffs' Position
[11] Between February and October 2024, shortly after ATWELC started its operation, the Defendants created an unauthorized Google page. They posted numerous very negative reviews on that Google page and on Facebook (the "impugned publications"). These publications are summarized by the Plaintiffs as false allegations of child neglect, unethical conduct, and staff mistreatment. Excerpts of the Publications are below:
| Date (2024) | Author | Platform | Content |
|---|---|---|---|
| Feb 29 | Defendant Dobbin | Not where you want to go Nicole! New owners took over and all staff have left. | |
| Apr 25 | Defendant Martin (as Lisa Flynn) | Investigated by 80% of the families… complete neglect… NO BUSINESS working in childcare. | |
| Apr 25 | Non-Party Calderone (spouse of Defendant Wade, as 'I3lain') | Absolute clown show… Leaving your kids with the dog is safer. | |
| Apr 26 | Defendant Henry (as 'Kaitlyn K') | Elder neglect… firing staff… no accident reports… truly has it all. | |
| Apr 26 | Defendant Dobbin | Please run… lied about my child's head injury… fired all the staff. | |
| Apr 26 | Defendant Singh | They neglect the children… don't care about ministry guidelines… fired me and my cousin. | |
| Apr 26 | Non-Party Bajwa (Associate of Singh) | Worst childcare centre ever seen. | |
| Apr 26 | Defendant Wade | Staff who ask questions are fired; parents, terminated… We have the receipts. | |
| Apr 26 | Non-Party Kathy Martin, (Martin's relative) | Poor business ethics… Very peculiar 5-star reviews. | |
| Apr 26 | Non-Party Hahn (Father of Dobbin's child) | They will terminate your child's care… There has to be better options. | |
| July 3 | Non-Party Williams (Dobbin's Fiancé) | Most unprofessional owners… terminate care without notice, then go after you for pay. | |
| Sept 11 | Defendant Henry | This place is entirely unethical and ought to be shut down. | |
| Sept 11 | Defendant Henry (as 'Kaitlyn K') | 3.5hour nap time… profit focused… disgusting way to run a business. | |
| Sept 11 | Non-Party McIntyre (friend of Henry) | Leaves children in the dark… no background checks… scary stories. | |
| Sept 12 | Defendant Dobbin | I witnessed neglect… sued for speaking the truth. | |
| Sept 24 | Defendant Henry (as 'Kaitlyn K') | No accident reports… firing staff… disgusting way to run a business. | |
| Oct 22 | Defendant Henry | Feel free to message me—more than willing to share my (terrible) experience. |
[12] It is important to review the specific content of the impugned publications, which are pleaded in the Claim as follows:
February 29, 2024 – Erin Dobbins – First Post
"Nicole Pascoe not where you want to go Nicole! New owners took over and all staff have left."
The First Post is not only untrue, but harms the Plaintiffs' reputation and discourages potential clients from engaging the Plaintiffs' services, as per the coordinated actions of Dobbin and other Defendants. The statements by Dobbin and others were made with malice, as demonstrated by their deliberate repetition of falsehoods and coordinated efforts to amplify these claims across multiple platforms, including unauthorized Google pages and fake reviews. Such malice negates any claim of qualified privilege.
April 25, 2024 – Unauthorized Google Page
On or around April 25, 2024, an unauthorized Google business page was created for ATWELC without permission. Despite the Plaintiffs' repeated attempts to remove the Google business page, the page was continually recreated, becoming a vehicle for the Defendants and others associated with them to post defamatory reviews about the Plaintiffs.
April 25, 2024 – Lisa Flynn – Second Post
"DO NOT SEND YOUR BABIES HERE!!!!!
These people have been reported multiple times and investigated by 80% of the families due to complete neglect, severe safety concerns and nothing but lies.
They are unprofessional, defence and have NO BUSINESS working in childcare.
We "the families" have been through so much and the kids miss their friends. #community"
April 25, 2024 – l3lain – Third Post
"This place is an absolute clown show since the new ownership came online…Leaving your kids with the dog is safer"
April 26, 2024 – Kaitlyn K – Fourth Post
"This establishment allows children to experience elder neglect decades earlier. 3.5 hour confinement for 'nap time' , insufficient food, no proof of police checks, firing staff who express safety concerns, no accident reports, no adherence to ECE to children ratios, this place truly has it all".
April 26, 2024 – Erin Dobbin – Fifth Post
"As an RECE and parent, please run… These people do not value children, wellbeing or safety. Bought a beautiful business, ruined it, fired all the staff and let go most of our caring families. The remaining families have since endured hardship and several safety concerns for their children. They are having current staff lie about the length of employment, ratios, food intake and so much more…
I personally dealt with the owners who lied directly about my child's head injury. Huge difference between a regular nose bleed and head injury resulting in a nose bleed…"
April 26, 2024 – Prabhdeep Singh – Sixth Post
"I have worked for this place for almost three months. I had horrible experience with this childcare centre. They neglect the children and don't care about ministry guidelines when ministry is not there or present and try to fix everything when ministry visits ATWELC. They have so many complaices. When I shared my concerns with the supervisor and owner they fired me without any reason. They not only fired me but also my cousin which is insane. They have two faces and they actually don't care about the staff and children. All they care about is money. I will give this place 0 rating".
April 26, 2024 – Harjot Bajwa – Seventh Post
"Worst childcare centre ever seen."
April 26, 2024 – Lindy Millar – Eighth Post
"I would give this place zero stars if I could. The new owners are very unprofessional and have no idea what they are doing. They turned a wonderful childcare centre into a prison."
April 26, 2024 – Sue Flynn – Ninth Post
"Children are neglected. If you question your child's care, they are terminated from the daycare. If staff, questions their practices, they are also terminated. Stay far away from this place."
April 26, 2024 – Sarah Maudsley – Tenth Post
"I had my son in their care for 1 week at the start if February and pulled him because they were letting him go hungry over the course of the 7 to 8 hours he was in their care. The new owners changed the menu from the previous ownership and then over hald the kids wouldn't eat the new menu. My sons teacher was sneaking him crackers and cookies from her own lunch!. The owner refused to listen and talk staff the kids would have to get used to it. They then fired my sons teacher on a Friday mid morning for expressing safety concerns and I was not notified until 3 days later and I was never told who was watching my son that afternoon. Plus they put our fees up as soon as they opened."
April 26, 2024 – Madeleine Wade – Eleventh Post
"If you are staff asking questions you are fired. If you are a parent asking questions, your care is terminated. We have the receipts. Nicole is complicit. Just last week there was one student on the floor (not yet graduated) watching all the children, but sure, ratios."
April 26, 2024 – Kathy Martin – Twelfth Post
"This place should be checked on something is not right. A parent should be allowed to ask about some concerns and questions without basically last minute terminating of their child. You are not there to listen to concerns or question because the next minute your child is terminated from the daycare and with minimal notice. There are other people's children they have the right to question you but apparently you people don't want to deal with it so you take it out on the child and oust them. Very poor business ethics. I advise people to do their homework before putting them in your establishment. I also like to mention my grandchild attended this place and was ousted with very short notice on a Sunday afternoon which left his parents scrambling to find someone who could watch him, their meeting with this place to bring up some concerns was on the Friday before they got the e-mail which was Sunday mid afternoon that my grandchild was not longer to attend their daycare, so I don't call that allot of notice at all and they have the e-mail to prove it which they sent on to me. Parents do have paperwork to back up some of their concerns. I also wonder how many of these 5 star ratings have children or are related to a child attending this place since I was called out that I don't have any involvement with it (my grandchild is my concern). It seems very peculiar especially with no comment to back them up regarding their child or this daycare that must attend since giving such a high rating. I still say someone should step in and check out what is going on here it just isn't right."
April 26, 2024 – Nick Hahn – Thirteenth Post
"Just avoid, it is their way or the highway the second you ask a question about anything they will terminate your child's care leaving you stranded, if you are a working parent and dependent on care for that I advise looking elsewhere there has to be better options."
July 3, 2024 – Brady Williams – Fourteenth Post
"Out of the 6 private licensed cares my children have been in, I have never witnessed such a terrible space for children. From under feeding my child, improper hygiene when doing diaper changes, and the total lack of communication on how my child is cared for where do I start. By far the most unprofessional owners I have ever met. They are rude, get defensive when you ask about anything pertaining to their daycare and the well being of your child. They terminate care without notice and then go after you for a 2 weeks of pay for lack of notice when they terminate.
Edit in response to your reply you think what you want getting friends to write you fake replies aren't going to help your failing daycare..the proof is in the amount of children you have at your daycare [laughing emoji]..also what policies the one you made up on the spot when your daycare started failing [shrugging emoji] the fact of the matter these reviews don't matter anyways I don't foresee your daycare staying a float for very much longer anyways with the amount 5 counties and Peterborough county is involved.."
September 11, 2024 – Laitlyn Henry – the Fifteenth Post
"Between under feeding, lack of diaper changes, unrecorded accident reports, firing staff who cite safety concerns, and extended quiet hours so they don't have to deal with children, this place is entirely unethical and ought to be shut down."
September 11, 2024 – Kaitlyn K – the Sixteenth Post
"This place is not fit for children, 3.5 hour nap time, insufficient food, no proof of police checks, firing staff who express safety concerns, no accident reports, no adherence to ECE to children ratios, please do not send your kids here. I have never heard of a profit focused childcare centre before but this is it and it's a disgusting way to run a business that's supposed to be focused on children's wellbeing."
September 11, 2024 – Kaitlyn McIntyre – the Seventeenth Post
"Leaves the children in the dark for "nap time" alone. They have no first aid and do not have background checks, will send your kids home hungry. I've hear many more scary stories about this place that have no place on a public review."
September 12, 2024 – Erin Dobbin – the Eighteenth Post
"As an RECE and parent please run…These people do not value children. Wellbeing or safety.
EDIT – September 12, 2025
They have blocked past parents from adding more reviews causing concerned families to use their other emails to make reviews. The facts are all the same.
ATW has simply offered wonderful responses offering to sort out any issues or concerns but fails to answer our calls or emails..I was issued a lawsuit (failed) for speaking the truth and reporting to the ministry. That is the ONLT time I have been given a response of any kind other than these fake review answers.
I would like to point out SEVERAL of the positive reviews are relatives of the family who took over and ruined the business. NOT families who have been in there and experienced the childcare.
I witnessed fist hand neglect, children being left unattended, food not being provided/children going hungry, no outdoor time, over the 2 hour nap limit and so much more. When I brought this up, my child's care was terminated."
September 24, 2025 – Kaitlyn K – the Nineteenth Post
"This place is not fit for children, 3.5 hour nap time, insufficient food, no proof of police checks, firing staff who express safety concerns, no accident reports, no adherence to ECE to children ratios, please do not send your kids here. I have never heard of a profit focused childcare centre before but this is it and it's a disgusting way to run a business that's supposed to be focused on children's wellbeing."
October 22, 2024 – Kaitlyn Henry – the Twentieth Post
"Feel free to message me, more than willing to share my (terrible) experience with them."
[13] The Defendants also participated in a WhatsApp group chat called "Around the Drain ELC" ("the Group Chat"). The Plaintiffs claim the messages sent between April 23 and May 28, 2024 are evidence of the existence of a coordinated and malicious effort to discredit and shut down ATWELC, and not created from a genuine concern for child safety. Blain Calderone ("Calderone") (Wade's spouse) messaged, "I want ATW ELC shut down," claiming "families are lining up." Wade urged members to "pile on" complaints to the Ministry of Education ("MOE"). When the unauthorized Google page went live, Defendants Martin and Dobbin exclaimed in the group chat, "It's back up!!!!!" and "Go go go!!! Lol," with Dobbin also messaging, "[S]ynchronize our reviews." Wade requested damaging anecdotes, and Calderone suggested hiding a phone in a child's backpack to record staff.
[14] The Plaintiffs emphasize that the Defendants' campaign on Facebook and Google had immediate impact. Many parents questioned staff about the impugned publications. On April 22, 2024, Jessica Gerow withdrew her child from ATWELC after reading "many concerns" online. Her Facebook post seeking new care was made the day after joining the Defendants' Group Chat. Within 48 hours of the Facebook posts, the MOE conducted two unannounced inspections on April 23 and 24, with a third on May 7, 2024, resulting from the Defendants' impugned publications. These inspections had the effect of diverting significant staff resources.
[15] Further, the Plaintiffs claim the reputational damage caused by the Defendants resulted in an additional five child withdrawals – eleven in total. In March 2025, several waitlisted families then declined their offer of enrolment, relying on the impugned publications. The Plaintiffs allege they suffered measurable harm as the reduced child registration triggered a "Canada Wide Early Learning and Child Care" ("CWELCC") clawback, classroom closures, lost tuition, and jeopardized grants with legal and compliance costs. Plaintiff Pjescic claims the campaign also caused ongoing emotional distress to him and staff, disrupting ATWELC's operations. To manage these negative posts, the Plaintiffs claim Pjescic resigned from his role at ESC, thereby losing his salary and benefits. The Plaintiffs' evidence is that they suffered measurable harm such as: declining enrolment triggered a CWELCC clawback, classroom closures, lost tuition and jeopardized grants with increased legal and compliance costs. In March of 2025, prospective parents referred to the Defendants' posts and declined to enrol their children at ATWELC.
The Defendants' Position
[16] The Defendants seek an Order pursuant to section 137.1(3) of the Courts of Justice Act, R.S.O. 1990 c. C. 43, dismissing the action against them.
[17] They submit that the Plaintiffs have not provided evidence that can enable the court to draw an inference that the harm allegedly suffered is of a magnitude sufficient to outweigh the public interest in protecting the expressions at issue on this motion.
[18] The Defendants submit the public has a genuine interest in knowing about the impugned publications and the impugned publications are of public interest because they involve child welfare practices at an Ontario-licensed child care center. The Defendants argue the publications individually and collectively provide notice of events they perceived, the events were sufficiently serious, and therefore, warranted the MOE to require ATWELC's compliance.
[19] To be of public interest, the subject matter "must be one inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached." Therefore, to be of public interest, some segment of the public must have a genuine stake in knowing about the expressions after publishing.
[20] The Defendants challenge the Plaintiffs' evidence submitting that as there is no evidence of harm it can not outweigh the public interest in protecting the expressions at issue. The Plaintiff Pjescic refused to answer questions about or produce documents establishing a loss, demonstrating a causal link between the expressions and the alleged loss, and admits ATWELC is currently at full capacity.
[21] The Defendants submit that to find in favour of the Plaintiffs would harm the public interest and send a message to users of Ontario's licensed child care system, of whom are predominantly women, that public debate on licensed care is prohibited.
[22] Further, they submit that the Plaintiffs' right to be free from bona fide criticism should not outweigh the Defendants (Mothers and care providers) right to provide notice to other parents about their childcare experiences at ATWELC.
[23] The Defendants also submit that parents should have the right to communicate openly and publicly about the standard of care their children receive. They submit that such allows for public debate and helps to "cover the gap" in the MOE's enforcement of prescribed policies.
[24] The Ontario's licensed childcare system accountability mechanism is based on a complaint system, which helps to ensure high standards of care. The Defendants submit if the MOE cannot address a critical situation involving children due to funding or other operational concerns, then the parents and care givers should have the right to express themselves without fear of being silenced with litigation. However, on this motion, the Defendants have not produced any evidence of a lack of investigative action by the MOE with respect to childcare in Ontario.
[25] The defendants seek the following relief:
i. A declaration that the proceedings against the Defendants Erin Dobbin, Kaitlyn Henry, Prabhdeep Singh, Lisa Flynn, and Madeleine Wade arose from an expression made by the Defendants, that relates to a matter of public interest.
ii. An Order dismissing the action against the Defendants, Erin Dobbin, Kaitlyn Henry, Prabhdeep Singh, Lisa Flynn, and Madeleine Wade pursuant to section 137.1(3) of the Courts of Justice Act, R.S.O. 1990, c. 43 (as amended)
iii. Costs of the motion and the proceeding on a full indemnity basis, pursuant to section 137.1(7) of the Courts of Justice Act, R.S.O. 1990, c. 43 (as amended).
The Defamation Action
[26] The Plaintiffs claim general damages for libel and slander; special damages; aggravated, exemplary, and punitive damages and interim and permanent injunctive relief against the Defendants, as follows:
i. A declaration that the Defendants, through their false and malicious statements, defamed the Plaintiffs by exposing them to hatred, ridicule and contempt within the community, thereby causing reputational and economic hardship;
ii. A declaration that the Defendants unlawfully interfered with the Plaintiffs' contractual relations with existing and prospective clients;
iii. General damages for injury to reputation, loss of customers, lost wages, loss of health benefits, and business, arising from the Defendants' defamation, injurious falsehood, interference with economic relations, induced breach of contract and conspiracy, in the amount of four hundred thousand dollars ($400,000);
iv. Aggravated and/or punitive damages in the amount of fifty thousand dollars ($50,000); and
v. An Order permanently restraining the Defendants from disseminating, posting on the internet, or publishing any defamatory statements concerning the Plaintiffs, their employees and/or staff.
[27] The moving party Defendants have not delivered their statement of defence. Their counsel submits that the impugned publications were not defamatory of the Plaintiffs, but submits that their position will be that the impugned publications relate to matters of public interest concerning child welfare, and were true or substantially true, made in good faith, without malice and the defence of fair comment.
[28] On this motion, the Plaintiffs do not challenge that the defamatory statements are expressions related to a matter of public interest, namely, childcare welfare. The Plaintiffs challenge the quality of the statements and the protection the statements should receive. The analysis required under s. 137.1(4), is detailed below.
Legal Framework: Section 137.1 of the Courts of Justice Act
[29] In the recent case of Hamer v. Doe, 2024 ONCA 721, 501 D.L.R. (4th) 136, Justice Roberts considered Section 137.1 of the Courts of Justice Act and its general legislative purposes and stated that:
s. 137.1 provides a preliminary screening mechanism under ss. 137.1(3) and (4) to prevent strategic lawsuits in matters of public interest: Hansman v. Neufeld, 2023 SCC 14, 481 D.L.R. (4th) 218, at paras. 49, 50; Pointes Protection Association v. Canada (Attorney General), 2021 SCC 52, 462 D.L.R. (4th) 1, at para. 16. The objective is to quickly identify and deal with strategic lawsuits, and ensure abusive litigation is stopped but legitimate action can continue: Pointes, at paras. 61, 62. [Emphasis added].
Because the assessment under s. 137.1 is meant to be a preliminary screening mechanism, courts must carefully guard against conflating the summary vetting procedure under s. 137.1 with a motion for summary judgment under r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and ensure that they engage in only a limited weighing of the evidence for the specific aim of assessing the legislated criteria under s. 137.1: Pointes, at para. 52; Thorman v. McGraw, 2022 ONCA 851, 476 D.L.R. (4th) 577, at para. 4; Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 26, 455 D.L.R. (4th) 525, at para. 55, leave to appeal refused, [2021] S.C.C.A. No. 87. Contested issues of fact and credibility and competing inferences drawn from contested primary facts are not to be resolved on a s. 137.1 motion: Pointes, at para. 52; Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 65; Subway Franchise Systems of Canada, Inc., at para. 55. As the Supreme Court instructed in Pointes, at para. 52, a motion judge deciding a s. 137.1 motion "should defer ultimate assessments of credibility and other questions requiring a deep dive into the evidence to a later stage, where judicial powers of inquiry are broader and pleadings are more developed."
Subsection 137.1(3) of the CJA provides that "[o]n 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" (emphasis added). As my emphasis makes clear, the relief under this subsection is available only to the moving party who made or published the expression in issue. I shall return to this point later in these reasons.
"The initial onus is on the moving party to show on a balance of probabilities that the proceeding arises from an expression made by the moving party that is related to a matter of public interest: Pointes, at para. 31; Bent, at para. 87. If the moving party satisfies that onus, the onus then shifts to the responding party to satisfy the criteria under s. 137.1(4): Pointes, at para. 33; Levant v. DeMelle, 2022 ONCA 79, 79 C.P.C. (8th) 437, at para. 19, leave to appeal refused, [2022] S.C.C.A. No. 88."
[30] In Hamer, the Court of Appeal set out the following analysis, which I quote from extensively because it is of great assistance and applicable to this motion before the court:
Requisite Analysis under s. 137.1(4)
Subsection 137.1(4) reads as follows:
(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. [Emphasis in original.]
I have emphasized the provisions of s. 137.1(4) that set out the standard to be applied in the court's determination in keeping with the function of s. 137.1(4) as an initial screening mechanism.
(i) Subsection 137.1(4)(a): the merits-based hurdle
The merits-based hurdle under s. 137.1(4)(a) that "there are grounds to believe" that "the proceeding has substantial merit" is not "a high bar" and one lower than the "balance of probabilities" standard applied to the analysis under s. 137.1(3): Pointes, at para. 35; Bent, at para. 87; Marcellin v. Chaleur Constructors Inc., 2024 ONCA 598, at para. 10. This is because the merits-based hurdle "is a preliminary assessment of the claims advanced and the defences to them" and "intended to provide an overall assessment of the prospects of success of the action": 40 Days for Life v. Dietrich, 2024 ONCA 599, at para. 43. As the Supreme Court instructed in Pointes, at para. 37, per Côté J.: "To be sure, s. 137.1(4)(a) is not a determinative adjudication of the merits of the underlying claim or a conclusive determination of the existence of a defence" (emphasis added). See also: Pointes, at para. 59.
This lower hurdle is reflected in the requirement that the responding party must only satisfy the motion judge that "there are grounds to believe" the criteria under ss. 137.1(4)(a)(i) and (ii). Therefore, the merits-based burden on the responding party is not a high one and should not be overstated: Mondal v. Kirkconnell, 2023 ONCA 523, 485 D.L.R. (4th) 90, at paras. 51, 58.
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": Bent, at para. 87; Pointes, at para. 39. Importantly in this regard, the Supreme Court in Bent elaborated that "a basis in the record" means that "any basis in the record and the law will be sufficient" and that "[b]y definition, 'a basis' will exist if there is a single basis in the record and the law to support a finding of substantial merit and the absence of a valid defence", so long as that basis is "legally tenable and reasonably capable of belief": at para. 88 (emphasis in the original). See also: Pointes, at paras. 39-40; 40 Days for Life, at para. 43; Mondal, at paras. 51; Subway Franchise Systems of Canada, Inc., at paras. 66-68.
What does the "grounds to believe" standard entail when applied to the criterion under s. 137.1(4)(a)(i) that "the proceeding has substantial merit"? I start with the Supreme Court's definition that "substantial merit" means "a real prospect of success – in other words, a prospect of success that, while not amounting to a demonstrated likelihood of success, tends to weigh more in favour of the plaintiff." [Emphasis added]: Pointes, at para. 49; Bent, at para. 90. What s. 137.1(4)(a) asks, in effect, is whether the motion judge concludes from his or her assessment of the record that "there is a basis in fact and in law – taking into account the context of the proceeding – to support a finding that the plaintiff's claim has substantial merit" in that its prospect of success weighs more in favour of the plaintiff: Pointes, at para. 42.
Applying the correct approach, in assessing whether the Plaintiffs' defamation proceeding has substantial merit for the purposes of s. 137(4)(a)(i), the following three criteria must be met, as noted in Bent, at para. 92:
i. The words complained of were published, meaning that they were communicated to at least one person other than the plaintiff;
ii. The words complained of referred to the plaintiff; and
iii. 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.
It was necessary to consider the cumulative effect of all the posts and comments. Ms. Melo's March 19, 2020 post served as the catalyst for all the related posts and comments that culminated in Ms. Namedof's July 3, 2020 post. All these posts and comments were interconnected and formed part of a series of statements relating only to the appellants and about the same subject, namely, the welfare of the cats in the appellants' care. They were inseparable from each other and had to be considered as a whole so that the sting or the main thrust of the defamation could be properly ascertained: Bent, at paras. 107, 108. While each defendant is responsible for his/her own statement in the absence of republication, each defendant's post made in response to another's post must be read in the context of the prior posts: Armstrong v. Corus Entertainment Inc., 2018 ONCA 689, 143 O.R. (3d) 54, at para. 67.
When correctly characterized, it is clear that the sting or main thrust of the impugned statements alleges that under the deliberately misleading auspices of the appellant cat rescue operation, Ms. Hamer is a mentally unstable cat hoarder who mistreats or even kills cats in her care and "scams" money in order to do so.
The correct characterization of the sting of the defamation changes the analysis of whether there are grounds to believe that the appellants' action has substantial merit. Clearly, the sting of calling someone a mentally unstable cat hoarder who kills cats in her care is very damaging to the professional reputation of the appellants in the relatively circumscribed cat rescue community of Hamilton where the appellants are apparently well known. Calling the appellants "cat killers" is obviously much more damaging than the allegation of simply keeping too many cats in one place: it goes to the core of the appellants' professional reputation as cat rescuers. The motion judge's mischaracterization of the sting of the defamation caused her to understate, in her overall assessment, the legitimacy of the appellants' action and their right to protect their reputation by way of their action.
Application of the Hamer Analysis
Have the Plaintiffs Satisfied their Burden of Convincing this Court that the Action has a Real Prospect of Success that Tends to Weigh more in the Favour of the Plaintiffs?
[31] I find that they have.
Are the Criteria Set out in Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645 Satisfied?
[32] I find the criteria from Bent is satisfied. The words complained of were communicated to the public at large. They were published on Google to an unlimited audience online. The words clearly refer to the Plaintiffs, ATWELC and Pjescic. The Defendants have also admitted they published the impugned words. It is important to note that as set out by the Court of Appeal in Hamer, the Plaintiffs will have satisfied their burden of proof at this stage even if there is a single basis in the record and law that is legally tenable and reasonably capable of belief. I find the words would tend to lower the Plaintiff's reputation in the eyes of a reasonable person.
[33] The impugned publications, in my view, are particularly disturbing with respect to the quality of childcare provided by the Plaintiffs. They accuse the Plaintiffs of child neglect, fraudulent record-keeping, and regulatory non-compliance. These allegations are defamatory on their face, and as such, damage to the Plaintiffs' reputations is presumed.
Are There Grounds to Believe the Plaintiffs Claims Have Merit?
I find that on the basis of the evidence, there are grounds to believe the libel claim has substantial merit for the following reasons:
To succeed on the injurious falsehood claim, the Plaintiffs must show that false statements were made with malice about the Plaintiffs' business causing special damage. The Plaintiffs' Statement of Claim pleads facts that can demonstrate that ATWELC met MOE standards, maintained staffing ratios, and properly documented incidents with children, contrary to the Defendants' publications.
The evidence of the Group Chat supports a finding there was a coordinated effort to damage ATWELC's reputation. Messages like "synchronize our reviews" and "shut ATW down" were sent before the negative Google publications by the Defendants.
The claim of intentional interference by unlawful means causing loss to the Plaintiffs' economic relations with third parties can also be reasonably supported by the evidence. The Defendants' creation of the Google page and coordinating the allegedly false reviews can be found to be deliberately created to disrupt ATWELC's contracts with parents.
To establish the claim that there was an induced breach of contract, the Plaintiffs must prove:
i. the existence of enforceable contracts;
ii. the defendant's knowledge of those contracts;
iii. intent to procure breach;
iv. breach; and
v. a resulting loss.
The evidence of the parent care agreements show that the Defendants Dobbin and Singh were privy to these agreements through their positions as RECEs with ATWELC. They urged parents to "run." The evidence that several families terminated care with ATWELC, can support a finding of a quantifiable loss.
[34] To succeed on the conspiracy claim, the Plaintiffs must prove that (i) two or more persons act in concert, (ii) with the predominant purpose of injuring the plaintiff or through unlawful means, (iii) caused damage. The Group Chat evidences an express agreement to "review-bomb" ATWELC and block its expansion. That concerted action, combined with the motive to injure the Plaintiffs by unlawful defamatory publications which resulted in losses for the Plaintiffs, can support a finding of conspiracy against the Defendants
[35] The Defendants submit that the Plaintiffs have not provided the necessary evidence demonstrating the harm that was caused by the publications. The Plaintiffs are not required to prove harm suffered at this stage of the analysis– the Plaintiffs need only provide an evidentiary basis to support their claims, which I found they have.
[36] I also do not accept that there is no evidence to support a finding that the Plaintiffs suffered any financial losses. Even though the Plaintiffs admit that they are currently at full capacity and have refused to produce any evidence to establish a loss, there is evidence of loss as set out in the affidavit of the Plaintiff Pjescic.
[37] Additionally, the Defendants submit that the Plaintiffs' claim is not legally tenable because the Plaintiff "Around the World Early Learning Centre" does not exist in law. I do not accept this submission as this is easily rectified because the pleadings have not been closed. There is no defence filed. The claim can be amended.
Defences
[38] With respect to the S. 137.1(4)(a)(ii) analysis, Justice Roberts provided this guidance:
"I turn next to the requirements of s. 137.1(4)(a)(ii). Section 137.1(4)(a)(ii) "operates as a de facto burden-shifting provision" whereby the moving party defendant "must first put in play the defences it intends to present, and then the burden effectively shifts to the plaintiff, who bears the statutory burden" of showing there are grounds to believe that the defences have no real prospect of success: Pointes, at paras. 56, 60; Bent, at paras. 101, 103.
The responding party Plaintiff is not required to show that the defences will inevitably fail, as "[t]o approach s. 137.1(4)(a)(ii) in that fashion risks turning a motion under s. 137.1 into a summary judgment motion": Lascaris v. B'nai Brith Canada, 2019 ONCA 163, 144 O.R. (3d) 211, at para. 33, leave to appeal refused, [2019] S.C.C.A. No. 147. Similar to the burden under s. 137.1(4)(a)(i), the limited burden on the responding party under s. 137.1(4)(a)(ii) exists to show that there exists in the record or law, having regard to the stage of the proceeding, to support a finding that the defences do not tend to weigh more in favour of the moving party defendant: Bent, at para. 103. A determination that the asserted defences could go either way in the sense that they could be accepted or rejected is a finding that the defences may not succeed. [Emphasis added]: Subway Franchise Systems of Canada, Inc., at paras. 56, 57; Bondfield Construction Company Ltd. v. The Globe and Mail Inc., 2019 ONCA 166, 144 O.R. (3d) 291, at para. 15."
Are There Grounds to Believe the Respondents Have No Valid Defences?
The Defence of Justification
[39] In their factum in support of their motion, the Defendants' counsel states they rely on the defence of justification:
"The defence at play is justification. The defence of justification or "truth" is a complete defence and, if the facts which comprise the defamatory material are true, a plaintiff's action cannot succeed. Substantial truth is the test. "An allegedly defamatory statement is not actionable if it is substantially true. It is sufficient if the substance of the allegation is justified. The defence applies if the words are true in substance and in fact. If the defence is pleading to multiple imputations, the court must consider whether the evidence is sufficient to prove that each of the imputations is substantially true. A statement is substantially true where the alleged defamatory statement is no more ignominious in the mind of the average listener that true statement would have been."
[40] In applying the analysis of the Court of Appeal I rely on above, I must ask if there is a basis in the record and the law to support a finding that the proposed defences tend to weigh more in the Defendants favour: Bent, at para. 103.
[41] With respect to the defence of justification and fair comment, Justice Roberts stated:
"to succeed on the defence of justification at trial, the burden is on the defendant to prove the substantial truth of the sting or main thrust of the defamation: Bent, at para. 107. In other words, "the defence of justification will fail if the publication in issue is shown to have contained only accurate facts but the sting of the libel is not shown to be true": Bent, at para. 107, citing Peter A. Downard, The Law of Libel in Canada, 4th ed. (Toronto: LexisNexis, 2018), at §6.4. Partial truth is not a defence: Bent, at para. 108. In other words, justification is not available as a defence if part of the posts and comments are untrue.
Applying the proper test, there are grounds to believe the respondents have no valid fair comment and justification defences. While there may be a basis in the record to suggest that Ms. Hamer houses too many cats, there are grounds to believe that there is no defence to the real sting of the defamation that Ms. Hamer is a mentally unstable cat hoarder who abuses and kills cats in the appellants' care."
[42] The Defendants submit that the truth of their publications are substantiated by the inspection reports published to the online MOE compliance registry. I do not agree.
[43] Counsel for the Defendant submits that, if it were not for the online complaints and posts the Defendants made, the Plaintiffs would not have altered their behaviour and would have either not created or not followed prescribed policies to ensure child safety. Again, I do not accept this submission. The MOE records demonstrate direct evidence to the contrary, as the only infractions were those that were easily correctable as the breaches which happened right after the daycare opened and required the Plaintiffs to print policies and post them.
[44] The Defendants' affidavits, which I refer to below, included significant hearsay, hearsay evidence which is admissible where its source is known and it is on uncontentious matters: r. 39.01(4) and (5) of the Rules of Civil Procedure. The hearsay evidence was contentious, and therefore, is inadmissible.
The Defence of Fair Comment
[45] The defence of fair comment has the following elements: (i) the publication must be on a matter of public interest, and based on fact; (iii) the comment must be recognizable as comment and satisfy an objective test: Hansen, at para. 96. There must be a factual foundation for the impugned statement: Hansen, at para. 99.
[46] The defence can be dismissed if the plaintiffs prove the defendants were motivated by malice.
[47] The cross-examinations of the Defendants (which I review below), can lead to a finding that the Defendants put little or no effort into verifying the truthfulness of their comments: Awan v. Playland Inc., 2014 ONCA 404, 120 O.R. (3d) 161, at paras. 55, 94, 96.
[48] A fair comment defence can also be defeated by malice if a defendant acts "out of revenge in order to obtain satisfaction for some personal resentment or grudge": Zoutman v. Graham, 2019 ONSC 2834, [2019] O.J. No. 2398, at para. 101, aff'd 2020 ONCA 767, [2020] O.J. No. 5287; Mondal, at para. 57. In this case, there is support in the group chat and some of the Defendants' evidence to support the finding of malice as they had personal reasons to publish their statements.
[49] The Plaintiffs could satisfy their burden to establish there were grounds to believe the ordinarily available defence of fair comment would not succeed.
[50] I find that there is a basis in the record or law, having regard to the stage of the proceeding, to support a finding that the defences do not tend to weigh more in favour of the moving party defendants. The evidence I have referred to supports this finding.
[51] In the analysis of the weight of the public expression based on the evidence, which is referred to below, I find that there are grounds to believe that the defence of justification will not succeed. The impugned publications are very serious, with no direct evidence on this motion to support them.
[52] In Hamer, Justice Roberts further states, "finally, while the responding party must meet all the criteria under ss. 137.1(4)(a)(i) and (ii), these criteria should not be considered in isolation; they inform each other. The inquiry under (ii) mirrors the one under (i) because "[i]n effect, 'substantial merit' and 'no valid defence' are 'constituent parts of an overall assessment of the prospect of success of the underlying claim'": Bent, at para. 101, citing to Pointes, at paras. 59, 60. Accordingly, the motion judge must assess the criteria together."
[53] Based on the above, I can conclude there is a high chance of the claim succeeding, as there are grounds to believe there is substantial merit to the claim and no valid defences.
S. 137.1(4)(b) Analysis – Public Interest Weighing Stage
[54] In Hamer, Justice Roberts stated that:
"section 137.1(4)(b) is the public interest weighing stage, which is the "crux of the analysis", where the focus is on "what is really going on" in this case: Pointes, at paras. 18, 30 and 81. The final weighing exercise requires the "structured evaluation" of the competing values of the public interest in allowing a legitimate action to continue to redress harm caused by the moving party's actions against the public interest in the moving party's expression.: 40 Days for Life, at para. 93."
The burden on the responding party with respect to the alleged harm was recently described by this court in Marcellin, at para. 11: "The responding party need not prove harm or causation but must simply provide evidence for the motion judge to draw an inference of likelihood in respect of the existence of harm and the relevant causal link" (emphasis in original). In Thorman, at paras. 11, 12, this court further explained that "[h]arm need not be 'monetized'" and that a "'definitive determination of harm or causation' is not required." Instead, in order to succeed on the weighing exercise, the [responding party] "must provide evidence that enables the judge 'to draw an inference of likelihood' of harm of a magnitude sufficient to outweigh the public interest in protecting the [moving party's] expression": Hansman, at para. 67. Neither reputational harm nor monetary harm is more important than the other. Nor is harm synonymous with the damages alleged: Subway Franchise Systems of Canada, Inc., at para. 85.
While no definitive determination of harm or causation is required, it is insufficient to rely on "[p]resumed general damages" or "bare assertions of harm": Hansman, at para. 67. That said, "there is no threshold requirement for the harm to be sufficiently worthy of consideration…the magnitude of the harm simply adds weight to one side of the weighing exercise": Pointes, at para. 70.
Unlike the threshold analysis, where the question was simply whether the expression was related to a matter of public interest, at this stage, it is necessary to evaluate the expression's quality and the motivation behind it: Pointes, at para. 74. [Emphasis added]. As this court explained in Thorman, at para. 14:
The weighing analysis looks to the fundamental values underlying freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms, such as "the search for truth, participation in political decision making, and diversity informs of self-fulfillment and human flourishing, because '[t]he closer the expression is to any of these core values, the greater the public interest in protecting it'".
To the extent the expression moves away from any of these core values, the public interest in protecting it diminishes. Defamatory statements and personal attacks are only "tenuously related to the core values which underlie s. 2(b) of the" and therefore "there will be less of a public interest in protecting a statement that contains 'gratuitous personal attacks' and the 'motivation behind' the expression will be relevant to the inquiry": Buttar, at para., Bent, at para., Pointes, at paras. 74, 75; Thorman, at para.. [Emphasis added].
In weighing the public interest in allowing a proceeding to continue, certain factors may be relevant, including a history of attempts to silence critics, financial power imbalance, punitive purpose, and minimal damages suffered. The potential chilling effect on future expression and the defendant's history of advocacy in the public interest may also be relevant: Pointes, at paras. 79, 80.
In discussing factors that may bear on the public interest weighing exercise under s. 137.1(4)(b), at para. 79 of Pointes, Côté J. instructed that:
[T]he only factors that might be relevant in guiding that weighing exercise are those tethered to the text of s. 137.1(4)(b), which calls for a consideration of: the harm suffered or potentially suffered by the plaintiff, the corresponding public interest in allowing the underlying proceeding to continue, and the public interest in protecting the underlying expression.
While providing guidance on some of the relevant factors that may inform the analysis, Côté J. reminded that the "open-ended nature of s. 137.1(4)(b) provides courts with the ability to scrutinize what is really going on" and that s. 137.1(4)(b) "effectively allows motion judges to assess how allowing individuals or organizations to vindicate their rights through a lawsuit - a fundamental value in its own right in a democracy - affects, in turn, freedom of expression and its corresponding influence on public discourse and participation in a pluralistic democracy": Pointes, at para. 81. [Emphasis added].
As already noted, the appellants' burden under s. 137.1(4)(b) is not "to establish harm caused by the expression"; rather, it is to "provide evidence for the motion judge to draw an inference of likelihood in respect of the existence of harm and the relevant causal link": Marcellin, at para. 11. The question is whether the appellants have met their onus to establish that the harm likely to be or that has been suffered by them as a result of the respondents' expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression: Levant, at para. 71.
The motion judge's imposition of a more onerous burden on the appellants with respect to the issue of harm is reflected in her treatment of the appellants' proffered evidence on this issue and in her failure to engage in a robust consideration of the reputational harm caused by the sting of the defamation to the appellants.
As the motion judge correctly noted, presumed harm, by itself, may not be sufficient in the weighing exercise to outweigh the public interest in protecting the respondents' expression. However, here, the appellants did not simply rely on presumed harm or bald statements of harm. Rather, they led affidavit evidence attesting to the loss of donations, loss of volunteers, loss of public engagement, and, with respect to Ms. Hamer, psychological and concomitant physical harm because of the impugned statements.
Specifically, with respect to the question of the psychological and concomitant physical harm described by Ms. Hamer in her affidavit, we note that the Supreme Court in Bent did not require as part of the analytical framework that medical or other corroborating evidence be produced at the preliminary assessment stage for this kind of alleged harm but instructed, at para. 149, that these "intangible and subjective elements" should "factor into the assessment of the harm suffered by a plaintiff" and confirmed that "'injured feelings or the psychological impact' of defamation are relevant to the assessment of damages", with the reminder that "for the purposes of s. 137.1(4)(b), harm need not be monetized, as both 'monetary harm or non-monetary harm can be relevant to demonstrating' the existence of harm", citing to Pointes, at paras. 68-71.
Further, because of her mischaracterization of the sting of the defamation and her imposition of a more onerous burden to prove harm, the motion judge did not properly assess the reputational harm to the appellants, in particular, the harm to Ms. Hamer's reputation. A consideration of the state of the appellants' reputation was a necessary step in order to conduct a proper weighing under s. 137.1(4)(b): Levant, at para. 52; Subway Franchise Systems of Canada, Inc., at para. 96.
In Bent, at para. 146, Côté J. emphasized that "reputational harm is eminently relevant to the harm inquiry under s. 137.1(4)(b)" and that the Supreme Court's jurisprudence "has repeatedly emphasized the weighty importance that reputation ought to be given", because "reputation is one of the most valuable assets a person or a business can possess." [Emphasis added]: see also Pointes, at para. 69. Moreover, she noted in Bent, at para. 147, that the "import of reputation is only amplified when one considers professional reputation" (emphasis in original). As a result, she concluded, the harm analysis requires the consideration of not only the pleaded monetary harm, but also the harm to a plaintiff's reputation, "even if it is not quantifiable at this stage", noting that "the damaging effects that a defamatory remark may have on a plaintiff's 'position and standing' in the professional community exacerbate the harm suffered as a result": Bent, at para. 148; Pointes, at para. 71; Thorman, at para. 24.
The harm analysis did not require the appellants to definitively quantify or prove their actual damages on this threshold motion, particularly because this case involves alleged reputational damages caused by very serious allegations of child cruelty and disreputable dealings. [Emphasis added]. The motion judge failed to acknowledge that general damages for defamation do not have to be proven. Importantly, as a result of her mischaracterization of the sting of the defamation, the motion judge failed to consider that the respondents' very serious allegations against the appellants were potentially very harmful to the appellants' professional reputations. See: Thorman, at para. 23."
[55] The Defendants submit that to allow the action to proceed would be to send a message to other users of Ontario's licensed childcare system, predominantly women, that public debate on licensed care is prohibited. It is submitted that would hurt the public interest, and that motherhood and childhood are entitled to special care and assistance.
[56] They submit that they have a right to communicate and provide notice to other parents about their childcare experiences at ATWELC, and that this right should not be outweighed by the Plaintiffs' right to be free from bona fide criticism. Parents should have the right to communicate openly and publicly about the care their children receive. Permitting such communication generally permits public debate and assists in covering the gap in the enforcement of the prescribed policies by the MOE, from the time of complaint to compliance by the licensed childcare centre.
[57] The Defendants submit that Plaintiffs have not provided evidence that enables the court to draw an inference that the harm allegedly suffered is of a magnitude sufficient to outweigh the public interest in protecting the expressions at issue on this motion.
The Quality of the Impugned Statements
[58] At this stage of the analysis, the weighing exercise requires an examination of the quality of the impugned statements.
[59] The Plaintiffs' main submission is that the impugned publications were not designed to inform the public, but a coordinated attack on ATWELC's reputation. The impugned publications are characterized as allegations of "child neglect," "vomiting child," and "illegal ratios,". The Plaintiffs submit that the Group Chat is evidence of a coordinated and malicious effort to discredit and shut down ATWELC. These messages, (from April 23 to May 28, 2024) are evidence of deliberate planning.
[60] These messages also included xenophobic remarks: "I don't know if this is standard practice in the Ukraine and Serbia…" and "Every [positive] review is from a Ukrainian… just like Tatiana."
On this motion, there are five affidavits from the Defendants. As mentioned above, the cross-examinations showed that the Defendants' publications were generally based on hearsay, speculative, or unverified. For example, Wade alleged staff were terminated for asking questions, an adult who had not obtained a police check accessed classrooms, and children suffered neglect and injury. On cross-examination, she admitted she only witnessed minor concerns, her other claims relied on hearsay evidence in the form of Group Chat rumours, and that she never verified whether the adult had obtained a police check.
[61] Singh claimed child neglect, falsified records, and wrongful dismissal in his publications and alleged in a message to Wade that he contacted the MOE and CAS, but admitted under cross-examination he never reported concerns to CAS or police, made no notes, and had only one phone call with the MOE. He also admitted he was dismissed for performance issues.
[62] Dobbin stated that all staff left, forms were missing, phones were absent, ratios were inadequate, and her child was mistreated. When cross examined, she admitted "all staff" referred only to original hires, she failed to complete the forms she alleged were missing, phones were working (as evidenced by her voicemail), and the claimed injury occurred when ATWELC was closed.
[63] Henry's publications alleged neglect, forced naps, and retaliation. She admitted on cross-examination that she relied on the statements of others. She filed no complaints with regulators and kept no notes.
[64] Martin's publications alleged 50% of families left, a lack of communication, and that her son was expelled in retaliation. She conceded on cross examination that the "50%" claim was speculative, that she was able to set up a meeting with ATWELC to express her concerns within 24-hours, and provided no evidence that an Registered Early Childhood Educator employee ("RECE") left over safety concerns, or that ATWELC violated any regulations.
[65] Dobbin's publications include messages from parents confirming they declined enrolment due to her Publications. I find that the public interest in protecting the impugned publications is minimal. I accept that the Defendants' goal as evidenced in the Group Chat, was to shut down ATWELC. I find that the Plaintiffs' evidence of harm—withdrawals, inspections, lost funding, and reputational damage—outweighs any limited public interest in protecting the impugned publications.
[66] I find that the Defendants' record of WhatsApp messages, the recordings, and emails demonstrating a coordinated campaign to shut down ATWELC and retaliate against its owners could reasonably lead to a finding of malice. For example, messages include, "I want these clowns out of business," "Me too," and "Fuck them," and encouraged others to "pile on" with reviews and complaints to the MOE and media.
[67] Henry explicitly suggested including the phrase "Ministry violations" in Google reviews.
[68] I find that when considered in their entirety, the quality of the impugned publications makes them less worthy of protection because of the appearance and evidence of malice.
[69] I do not accept the submission that when the few inflammatory portions of the Defendants' publications are considered in the broader context of child welfare concerns, the public interest in the expression outweighs the harm to the appellants.
[70] I am of the view that the Defendants did not give a descriptive verified account of the child welfare concerns.
[71] I find that the sting of the impugned publications was not needed to convey the child welfare message. The Defendants could have expressed their concerns about the Plaintiffs' activities without using the extreme generalized language that was used in the impugned publications.
Conclusion
[72] When the criteria of s. 137.1(4) are analyzed in accordance with our Court of Appeals guidance, I conclude:
i. There are grounds to believe that the Plaintiffs action has substantial merit and that the Defendant's have no valid defence to the Plaintiffs action;
ii. The Plaintiffs have met their burden to provide evidence of harm beyond bare assertions;
iii. The potential damage to the Plaintiffs' professional reputations regarding childcare in their community is significant because of the seriousness of the allegations in the impugned publications; and
iv. The quality of the expression, when looked at in its entirety, is low.
[73] As our Court of Appeal has asked, what is really going on here? Unfortunately, the discussions in the Group Chat, which may have started as an expression of concern about child welfare, appears to have become a co-ordinated campaign against the Plaintiffs. As a result, I am of the view that the Plaintiffs have met their burden to establish that the public interest in allowing their Action to proceed outweighs the public interest in protecting the Defendants' expression in the impugned publications.
[74] I conclude that when considered as a whole, the impugned publications are worthy of little protection as an expression of child welfare concerns. For all the above noted reasons, this motion must be dismissed. The Defendants will have the chance to advance their defences of their publications at the trial of the action.
[75] For the above noted Reasons, I dismiss this motion.
Costs
[76] Pursuant to s. 137.1(8), if a judge does not dismiss a proceeding under s. 137.1, "the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances".
[77] If counsel cannot agree on costs, I will accept brief written submissions on this issue. The Plaintiffs may deliver written cost submissions to the Defendants, uploaded to case center and copied to my assistant Roxanne.stammers@ontario.ca of no more than five pages no later than September 18, 2025. The Defendants may deliver responding cost submissions to the Plaintiffs, uploaded to case center and copied to my assistant roxanne.stammers@ontario.ca of no more than four pages by no later than September 29, 2025. The Plaintiffs may provide reply costs submissions (in the same manner as above) of not more than two pages by no later than October 6, 2025.
[78] All written costs submissions shall be delivered electronically.
Pollak J.
Date: September 9, 2025