Emma Joyce Jansen et al v. J.T et al, 2026 ONSC 1304

Court File and Parties

CITATION: Emma Joyce Jansen et al v. J.T et al, 2026 ONSC 1304

COURT FILE NO.: CV-24-1335-00

DATE: 2026-03-05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

EMMA JOYCE JANSEN and ABIGAIL LORE JANSEN, minors, by their Litigation Guardian ASHLEY JANSEN, ASHLEY JANSEN personally, KEN JANSEN, BROCK CARLTON JANSEN, DRAYDEN JOHN LAWRENCE CAVANAUGH-JANSEN, and ANDREW JOHN KENNETH JANSEN

Plaintiffs

– and –

J.T, DURHAM REGIONAL POLICE SERVICES BOARD, THE DURHAM REGIONAL POLICE SERVICE, AMANDA RABISHAW, and THE KAWARTHA PINE RIDGE DISTRICT SCHOOL BOARD

Defendants

Counsel:

Raymond Colautti, Counsel for the Plaintiffs

Joanna Birenbaum, and Vanshika Dhawan Counsel, for the Defendant, J.T

Stuart Zacharias, Counsel for the Defendants, Durham Regional Police Services Board, Durham Regional Police Service, and Amanda Rabishaw

Sean T. Miller, Counsel for the Defendant, The Kawartha Pine Ridge District School Board

HEARD: December 9, 2025

BEFORE: J. Speyer J.

judgment on motion

A. Introduction

1This action originates in a complaint made by the defendant J.T. to the Durham Regional Police Service in 2022, when they were 16 years old. There is a ban on publication of any information that could identify the defendant J.T., and I will refer to them by their initials throughout this judgment.

2The complaint alleged that the plaintiff, Ashley Jansen, sexually assaulted then 12 years old J.T., four years earlier. The plaintiff was charged with sexual assault and sexual interference, contrary to ss. 271 and 151 of the Criminal Code, RSC 1985, c C-46. Following her trial before Tetley J. of the Ontario Court of Justice, Ms. Jansen was acquitted of the charges against her.

3In two sets of reasons for judgment, one given orally at the conclusion of the trial, and second, written reasons released on December 21, 2023, Tetley J. explained why Ms. Jansen was acquitted.

4In his oral reasons for judgment, given on November 24, 2023, Tetley J. explained why he had concerns about the reliability of the complainant’s evidence. Tetley J. noted that a “careful, impartial, and comprehensive investigation response, with a view to attempting to independently confirm aspects of the allegation that could be subject to confirmation or verification” did not occur. Tetley J. accepted the account of the events offered by the plaintiff, who he found to be a reliable and credible witness. He concluded that J.T.’s evidence was “unreliable and contrived.”

5In his written supplementary reasons for judgment, Tetley J. stated: “[p]reviously, I have concluded the complainant’s account to have been fabricated or contrived.” He characterized J.T.’s evidence as “untrue, contrived, and unworthy of belief.”

6On June 19, 2024, after J.T.’s 18^th birthday, the plaintiff filed her statement of claim. Ashley Jansen claims against the following defendants:

1. J.T. for malicious prosecution, damages totalling $4,000,000.00;

2. Durham Regional Police Services Board and Amanda Rabishaw for negligent investigation, damages totalling $3,000,000.00; and

3. The Kawartha Pine Ridge District School Board for negligence, damages totalling $3,000,000.00.

The other plaintiffs’ claims are brought pursuant to s. 61 of the Family Law Act, RSO 1990, c F.3, as amended.

7The Durham Regional Police Services Board, the Durham Regional Police Service, and Amanda Rabishaw (“the police defendants”) crossclaimed against their co-defendants, J.T. and the Kawartha Pine Ridge District School Board for contribution and indemnity with respect to the plaintiffs’ claims.

8J.T. moves for dismissal of the plaintiffs’ claim against them pursuant to s. 137.1 of the Courts of Justice Act, RSO 1990, c C.43 (“CJA.”). J.T. also moves for dismissal of the police defendants’ crossclaim against them.

9By notice of cross-motion dated February 25, 2025, the police defendants seek an Order granting them leave to amend their statement of defence and crossclaim. The amended statement of defence and crossclaim was issued on December 17, 2024, after J.T.’s motion was commenced. Pursuant to s. 137.1(5) of the CJA., the commencement of J.T.’s motion stayed the action, and pleadings could be amended only with leave of the Court.

10By notice of cross-motion dated February 4, 2025, the plaintiffs initiated a cross-motion to dismiss J.T.’s motion. The plaintiffs’ cross-motion further seeks a declaration that J.T.’s motion was brought in bad faith and for improper purposes and for an order for damages.

11The defendant Kawartha Pine Ridge District School Board did not participate in this motion.

B. The issues to be determined

12The plaintiffs’ cross-motion to dismiss J.T.’s motion can be addressed summarily. It is dismissed because it adds nothing to their response to J.T.’s motion and unduly complicates these proceedings. It is duplicative of their response to J.T.’s motion and unnecessary. It seeks relief that is provided for by s. 137.1 of the CJA. No cross-motion was necessary to obtain an adjudication of these issues.

13That leaves for consideration and determination the following issues:

1. Should the plaintiffs’ claim against J.T. be dismissed pursuant to s. 137.1 of the Courts of Justice Act?

2. Should the police defendants’ crossclaim against J.T. be dismissed?

3. Should the cross-motion of the police defendants granting them leave to amend their statement of defence and crossclaim be granted?

C. Should the plaintiffs’ claim against J.T. be dismissed pursuant to [s. 137.1](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html) of the [Courts of Justice Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html)?

14Section 137.1 of the CJA functions “as a mechanism to screen out lawsuits that unduly limit expression on matters of public interest through the identification and pre-trial dismissal of such actions.” However, s. 137.1 also operates to “ensur[e] that a plaintiff with a legitimate claim is not unduly deprived of the opportunity to pursue it”: Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645 (“Bent”), at para. 74.

15The parties agree that the framework for analysis of a motion to dismiss an action pursuant to s. 137.1 of the CJA was established by the decision of the Supreme Court of Canada in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587 (“Pointes”), at para. 18:

In brief, s. 137.1 places an initial burden on the moving party — the defendant in a lawsuit — to satisfy the judge that the proceeding arises from an expression relating to a matter of public interest. Once that showing is made, the burden shifts to the responding party — the plaintiff — to satisfy the motion judge that there are grounds to believe the proceeding has substantial merit and the moving party has no valid defence, and that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. If the responding party cannot satisfy the motion judge that it has met its burden, then the s. 137.1 motion will be granted and the underlying proceeding will be consequently dismissed.

16On this motion, unlike a judge determining a summary judgment motion, I should not do a “deep dive” into the record, but having regard to the stage of the litigation and the purpose of the motion, should instead conduct only a limited weighing of the evidence: Marcellin v. London (Police Services Board), 2024 ONCA 468, 498 D.L.R. (4th) 438 (“Marcellin”), at para. 9, leave to appeal refused, [2025] S.C.C.A. 41425.

17The motion record includes the decisions of Tetley J. Tetley J. found as a fact that J.T.’s evidence at the plaintiff’s criminal trial was untrue, contrived, and unworthy of belief. Those findings of fact are admissible evidence on this motion. Tetley J.’s decisions are judicial pronouncements made after he heard the evidence of witnesses who would be the same witnesses if the question of whether J.T.’s allegations were true or not were to be litigated on this motion. It would be wasteful of litigation resources and potentially productive of mischief and inconsistent findings to require me to disregard Tetley J.’s judgments and require the parties to re-litigate the facts on this motion: British Columbia (Attorney General) v. Malik, 2011 SCC 18, [2011] 1 S.C.R. 657, at paras. 46-52. I accept, for the purpose of adjudicating the issues that arise on this motion, that J.T.’s evidence that they were sexually assaulted by the plaintiff was false.

(a) Does the action arise from an expression made by J.T. that relates to a matter of public interest?

18J.T. bears the initial burden to satisfy me, on a balance of probabilities, that: (i) the proceeding arises from an expression made by J.T.; and (ii) the expression relates to a matter of public interest: Pointes, at para. 23.

19J.T. submits that their complaint to the police relates to a matter of public interest. The plaintiffs submit that J.T.’s complaint does not relate to a matter of public interest because it was false, and therefore inimical to the public interest.

20The plaintiff’s action is causally connected to J.T.’s complaint to the police and thereby arises from J.T.’s complaint to the police: Pointes, at para. 24.

21J.T.’s complaint is an expression, within the meaning of s. 137.1(2) of the CJA. That provision defines “expression” expansively:

“In this section, ‘expression’ means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.”

22In Pointes, at para. 26, the Supreme Court noted that the words “relates to a matter of public interest” should be given “a broad and liberal interpretation, consistent with the legislative purpose of s. 137.1(3)”: Pointes, at para. 26; Bent, at para. 81.

23In determining whether the expression relates to a matter of public interest, the expression is to be assessed as a whole, to determine whether some segment of the community would have a genuine interest in receiving information on the subject: Pointes, at paras. 26-27. It is legally irrelevant “whether the expression is desirable or deleterious, valuable or vexatious, or whether it helps or hampers the public interest — there is no qualitative assessment of the expression at this stage. The question is only whether the expression pertains to any matter of public interest, defined broadly”: Pointes, at para. 28; Mazhar v. Farooqi, 2021 ONCA 355, at para. 18.

24The plaintiff’s argument that J.T.’s statements were not in the public interest because they were “actuated by malice and were false and misleading” therefore fails because this stage of the analysis does not involve a qualitative assessment of the expression.

25Numerous cases have concluded that reports about alleged sexual abuse to the police, regulatory bodies, or on social media are expressions on a matter of public interest: Ng v. C. G., 2020 ONSC 6825, at paras. 10-15; Parrish v. R.K., 2024 ONSC 897 (unreported); Tella v. A.B., 2025 ONSC 3835, at para. 19; Zeppa v. Rea, 2023 ONCA 668, 168 O.R. (3d) 481, at para. 19 (“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.”); Marcellin v. LPS, 2022 ONSC 5886, rev’d on other grounds, 2024 ONCA 468, 498 D.L.R. (4th) 438; Smith v. Nagy, 2021 ONSC 4265; Deeb v. Zebian, 2022 ONSC 6947; Mazhar v. Farooqi, 2020 ONSC 3490, aff’d 2021 ONCA 355; Yates v. Iron Horse Corporation and St. Martin, 2023 ONSC 4195 (“Yates”), at para. 139; Lyncaster v. Metro Vancouver Kink Society, 2019 BCSC 2207; Galloway v. A.B., 2021 BCSC 2344; Rooney v. Galloway, 2024 BCCA 8; McDonald v. Goranko, 2023 BCSC 231.

26Therefore, I am satisfied, on a balance of probabilities, that the statements made by J.T. to the police alleging a sexual assault are expressions that relate to a matter of public interest for the purposes of s. 137.1(3).

27This triggers the application of s. 137.1(4), and the burden shifts now to the plaintiff to show that its action against J.T. has substantial merit and that there is no valid defence.

D. Does the claim have substantial merit and is there a valid defence?

28Once the defendant establishes that the expression relates to a matter of public interest, the onus shifts to the plaintiff to satisfy me that there is a basis in the record and the law to support a finding that the action has substantial merit and that there are no valid defences: Pointes, at para. 42. The “substantial merit” and “no valid defence” criteria are “constituent parts of an overall assessment of the prospect of success of the underlying claim”: Pointes, at para. 59.

29Section 137.1(4) of the CJA provides:

(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.

30Any basis to support a finding that the action has substantial merit and that there are no valid defences in the record and the law will be sufficient. “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. That basis must of course be legally tenable and reasonably capable of belief: Pointes, at paras. 48 and 53; Bent, at para. 88; and Marcellin, at para. 59.

a. Are there grounds to believe that the claim has substantial merit?

31“Grounds to believe” means something more than mere suspicion, but less than proof on a balance of probabilities: Pointes, at para. 40. That basis must be “legally tenable and reasonably capable of belief”: Bent, at para. 88.

32The Supreme Court has defined “substantial merit” as 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”: Pointes, at para. 49.

33In Marcellin, at para. 10, the Court of Appeal observed that the test to be met by the plaintiff resisting a s. 137.1 motion is not onerous:

The merits-based hurdle under s. 137.1(4)(a) is not a high bar. The evidentiary burden on the responding party is lower than a balance of probabilities. The responding party need establish only “grounds to believe” – that is, some basis in the record and the law – for finding that the proceeding has substantial merit and that the moving party has no valid defence: Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 103; Mondal v. Kirkconnell, 2023 ONCA 523, 485 D.L.R. (4th) 90, at paras. 30, 51 and 56.

34The plaintiffs’ claim against J.T. is grounded solely in the tort of malicious prosecution. The plaintiffs allege in their statement of claim that “in or about August 2022, J.T. contacted the DRPS and falsely and maliciously accused the plaintiff, Ashley Jansen, of having sexually assaulted [them] in 2018.” The plaintiffs allege in their statement of claim that “J.T. falsely and maliciously fabricated the allegation against Ashley solely to be vindictive and for the purpose of having her wrongfully charged and potentially convicted of criminal acts that [they] knew did not occur.”

35The tort of malicious prosecution “targets the decision to initiate or continue with a criminal prosecution”: Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339 (“Miazga”), at para. 7.

36The Supreme Court set out the four elements of a successful claim for malicious prosecution in Nelles v. Ontario, [1989] 2 S.C.R. 170, at pp. 192-193:

(i) the proceedings were initiated by the defendant;

(ii) the proceedings have been terminated in favour of the plaintiff;

(iii) there is an absence of reasonable and probable cause; and

(iv) the proceedings were brought out of malice, or another primary purpose other than that of carrying the law into effect.

See also: D’Addario v. Smith, 2018 ONCA 163 (“D’Addario”), at para. 23.

37The Supreme Court of Canada in Miazga, at para. 53, provided the following guidance as to the first element of the tort:

Under the first element of the test for malicious prosecution, the plaintiff must prove that the prosecution at issue was initiated by the defendant. This element identifies the proper target of the suit, as it is only those who were “actively instrumental” in setting the law in motion that may be held accountable for any damage that results.

38Exceptionally, a complainant who reported an event to the police can be found to have initiated a prosecution. The general rule is that the police officer who laid the charge will be considered to have initiated the prosecution: Konstan v. Berkovits, 2024 ONCA 510 (“Konstan”), at para. 32; D’Addario, at para. 24; and Yates, at paras. 154-155. In D’Addario, the Court of Appeal stated:

Malicious prosecution is difficult to establish. It is even more difficult to establish if a plaintiff seeks to establish that a private party is liable, as opposed to the police. Absent exceptional circumstances, the court will view the police officer who laid the charge as being the person who initiated the prosecution.

39In Curley v. Taafe, 2019 ONCA 368, 146 O.R. (3d) 575, at para. 20, Pardu J.A. explained why malicious prosecution must be difficult to establish:

The bar for a successful malicious prosecution action is deliberately set high, to avoid unduly chilling the willingness of individuals to seek recourse from the police. As Low J. observed in Correia v. Canac Kitchens, [2007] O.J. No. 143, 56 C.C.E.L. (3d) 209 (S.C.J.), at para. 75, rev’d on other grounds (2008), 91 O.R. (3d) 353, [2008] O.J. No. 2497, 2008 ONCA 506:

It is often observed that the bar is set very high in a claim of malicious prosecution and that a plaintiff has a very difficult burden to meet to make out the claim. It is in the public interest that this be the case because criminal prosecutions are brought not for the benefit of the prosecutor nor for the benefit of the complainant but rather for the common welfare of society. Second, because the standard of proof is very high in a criminal prosecution, there will be many prosecutions brought that do not succeed not because the charge is unfounded but because the standard of proof has not been met. That the threshold for success is high in an action of malicious prosecution therefore balances the public interest in bringing to justice persons who may have broken the law against the private interest of persons who have been wrongfully prosecuted without reasonable grounds and for oblique or improper motives.

40In D’Addario, the plaintiff commenced a malicious prosecution action against the complainants after criminal sexual assault charges against him were stayed before they went to trial. The trial judge dismissed the malicious prosecution claim following a motion by the defendants for a non-suit. On appeal, the trial judge’s decision was upheld. The Court of Appeal noted, at para. 26, that the material issue was not whether a false statement was made to the police, but rather whether that false statement interfered with the ability of the police to exercise independent discretion:

In this case, there was no evidence that Smith or Napior interfered with or undermined the independence of the investigation. The trial judge considered and rejected the argument that the mere provision of a false statement was sufficient to meet the test of initiating a prosecution. A false statement may cause the police to investigate, but there was no evidence from which it could reasonably be inferred that Constable McRoberts did not exercise her discretion independently.

41In Konstan, at para. 37, the Court of Appeal again considered the question to be answered to determine whether a complainant has initiated a criminal prosecution for the purpose of a subsequent tort action against them by the accused:

The trial judge accordingly misapprehended when a complainant can be held to have initiated a criminal prosecution for the purpose of a subsequent tort action against them by the accused. The question is not whether criminal charges would have been laid in the absence of the complainant’s report to the police. Rather, the question is whether, through knowingly supplying misinformation or withholding evidence, or through other wrongful conduct, the complainant compromised the police investigation and/or the independence of the decision by police to lay charges. [Emphasis added.]

See also: Kefeli v. Centennial College of Applied Arts and Technology, at para. 24; Bullock v. Doe, 2025 ONSC 947.

42J.T. first reported that they were sexually assaulted by Ashley Jansen about four years earlier in a 911 call they made to the Durham Regional Police Service on August 10, 2022. J.T. was 16 years old when they called 911. The police then interviewed J.T. twice before the police charged Ms. Jansen: 1) on August 13, 2022, J.T. was interviewed at their home by a trained Child Abuse and Sexual Assault officer; and 2) on August 26, 2022, J.T. attended the police station and participated in a video recorded interview. Ms. Jansen was charged with sexual assault and sexual interference on September 21, 2022. J.T. attended at the police station again and provided a second video recorded statement on October 21, 2022.

43The police did not charge Ms. Jansen promptly after J.T. provided their video-recorded statement on August 26, 2022. Rather, the case was assigned to Detective Rabishaw “for further investigation,” according to Detective Rabishaw’s supplementary report. Detective Rabishaw’s reports form part of the plaintiff’s record on this application. These reports demonstrate that the police did more than merely accept J.T.’s allegation at face value. Detective Rabishaw was aware that when J.T. was 12 years old, they got into a lot of trouble at school, and that their behaviours were very problematic, such that they could not be trusted to be with anyone. She knew this because J.T. told her about their behavioural issues. At the conclusion of the interview, Detective Rabishaw told J.T. and their father that “usually we consult with the victim as to what they would like; however, given the role that Ms. Jansen plays in the community I will make decisions as to what is best for the community.” Detective Rabishaw continued her investigation after the charges were laid. She obtained several production orders and interviewed potential witnesses.

44The adequacy of the police investigation is the subject of the plaintiff’s claim against the police defendants and is not an issue to be decided on this motion. What matters to this motion is that Detective Rabishaw took the position before the charges were laid that the police, and not J.T., would make that decision. It also matters that the police decided what further investigative steps would be undertaken and that J.T. had no input into what any further investigative steps would be.

45The plaintiff has not provided any evidence that J.T. had an improper motive and acted with malice when they made their complaint to the police. Rather, the plaintiff relies on evidence led at the plaintiff’s criminal trial about J.T.’s general character and reputation for dishonesty as a 12-year-old child from witnesses who had no contact with J.T. since they were 12 years old. The plaintiff asks me to infer from that evidence that J.T. had an improper motive and acted with malice and thereby compromised the police investigation four years later. I am unable, and decline, to make that inference.

46J.T., then 16 years old when their complaint was made to the police, did not compromise the police investigation or interfere with the independence of the decision made by the police to exercise their discretion to lay charges against the plaintiff. The police were responsible for investigating the report and for determining whether or not to lay a charge. They did so independently, free from any involvement or pressure by J.T. Therefore, J.T. did not initiate the prosecution.

47I find that because J.T. did not initiate the prosecution, the plaintiff’s claim against J.T. lacks substantial merit. The plaintiff’s claim against J.T. does not have a prospect of success that, while not amounting to a demonstrated likelihood of success, tends to weigh more in favour of the plaintiff. To the contrary, it is almost certain that the plaintiff’s claim against J.T. will fail.

48This finding, standing alone, requires that I dismiss the plaintiff’s claim against J.T. because s. 137.1(4) of the CJA requires that the plaintiff must demonstrate both that the proceeding has substantial merit and that 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.

49In the event that I am wrong about this, I will go on to consider the final step of the s. 137.1 analysis.

(b) Weighing the competing interests under s. 137.1(4)(b)

50The plaintiffs are required, as the respondents to this motion, to satisfy me that, due to the harm they have suffered or were likely to suffer because of J.T.’s expression, the public interest in allowing the action to continue outweighs its deleterious effects on expression and public participation: Pointes, at para. 82.

51The weighing exercise under s. 137.1(4)(b) is the “crux” or “core” of the s. 137.1 analysis. As Côté J. explained in Pointes, at para. 81:

[T]he open-ended nature of s. 137.1(4)(b) provides courts with the ability to scrutinize what is really going on in the particular case before them. Section 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. [Emphasis added.]

52The legal principles that govern my assessment of the harm suffered by the plaintiffs were summarized in Marcellin, at para. 89. The principles that apply in this case are:

1. Section 137.1(4)(b) requires both: (i) the existence of harm, and (ii) causation, that is, the harm was suffered as a result of the moving party’s expression;

2. Either monetary or non-monetary harm will suffice. The harm need not be monetized or quantified, although there must be evidence that the harm is of a magnitude sufficient to outweigh the public interest in protecting the impugned expressions;

3. Reputational harm is also relevant to the harm inquiry even if, at this stage, it is not quantifiable. Reputation is one of the most valuable assets a person or a business can possess;

4. A fully developed damages brief is not required; and

5. A responding party need not prove harm or causation but must simply provide evidence from which an inference of the likelihood of harm and causation may be drawn. This inquiry is undertaken by the motion judge on a case-by-case basis.

53I have no doubt that Ms. Jansen and her family have suffered great harm because she was charged with, and prosecuted for, serious criminal offences of which she was found to be not guilty after trial. The trial judge did not believe J.T. and found that their account was fabricated. The trial judge believed Ms. Jansen. In this case, the plaintiffs have provided compelling evidence of the harm they have suffered.

54Though the harm is significant, the causal link between J.T.’s complaint and that harm is tenuous. I have reached that conclusion for two reasons.

55First, while J.T.’s expression initiated the police investigation, J.T. did not initiate the prosecution. My reasons for that conclusion have been previously explained. The intervening involvement of various state actors that controlled whether charges would be laid and would proceed eroded the causal link between J.T.’s complaint and the harm suffered.

56Second, this case is unlike other cases, such as Marcellin, where vindictive adults undertook a concerted campaign of harassment that included complaints of criminal or regulatory misconduct for demonstrably improper purposes. This case involves a complaint to police by a child. The evidence discloses no motive on the part of J.T. to make a false statement. The evidence of their father, whose affidavit was filed in support of the motion, tells me that they have been diagnosed with autism spectrum disorder, ADHD, major depressive disorder, and generalized anxiety. They have attempted suicide on several occasions and have been involuntarily committed to the hospital many times.

57Whether the expression that is at issue “helps or hampers the public interest” is relevant to my assessment of the deleterious effects of permitting the action against J.T. to proceed on expression and public participation: Pointes, at para. 74. Under s. 134.1(4)(b), at this stage, I must undertake a “qualitative consideration of the public interest in the [subject] expression”: Thorman v. McGraw, 2022 ONCA 851, 476 D.L.R. (4th) 577, at para. 30. In Hansman v. Neufeld, 2023 SCC 14, [2023] 1 S.C.R. 519, at para. 79, the Supreme Court identified the qualities of expression that drive the appropriate level of protection:

[N]ot all expression is created equal, and the level of protection to be afforded to any particular expression can vary widely according to the quality of the expression, its subject matter, the motivation behind it, or the form through which it was expressed (see Pointes, at paras. 74, 76 and 120). The closer the expression lies to the core values of s. 2(b) [of the Charter], including truth-seeking, participation in political decision-making and diversity in the forms of self-fulfillment and human flourishing, “the greater the public interest in protecting it” (para. 77).

58The impugned expressions in this case were found by Tetley J. to be false. This is an important, though not determinative, factor in measuring the extent to which there is a public interest in protecting the particular expression. Other factors are also important. These include its subject matter, the defendant’s motive, and the form through which the expression is made.

59As previously stated, I can discern no motive, innocent or oblique, for J.T. to have made a false complaint, four years after the fact, about a person they had not had contact with during the intervening years.

60As to the manner of the complaint, I note that J.T. did not publicize the complaint or disseminate it in any way, except to the police, reasonably anticipating that the police would investigate and decide what to do about it.

61The subject matter of the expression, an allegation of sexual assault on a child by a person in a position of trust, relates to an issue of public interest and is plainly worthy of protection. Permitting the plaintiffs’ action to proceed against J.T. would have a chilling effect on victims of sexual assault and would fly in the face of changes in the law relating to the investigation and prosecution of sexually based offences. Those changes include the screening mechanisms that criminal trial courts must apply when accused persons seek production of records relating to the complainant or seek to introduce such records into evidence. Those screening mechanisms require a trial judge to consider society’s interest in encouraging the reporting of sexual offences (Criminal Code, ss. 278.5(2)(f), 278.7(2), 278.92(3)(b)) and reflect parliament’s recognition of the fact that such offences often go unreported.

62In examining what is really going on in this action, I also take into account the plaintiffs’ purpose in pursuing the action against J.T. The evidence establishes that the plaintiff Ken Jansen has posted repeatedly on Facebook about J.T. and their parents in harsh and inflammatory terms. He asserted the need to “not rest until accountability is had,” said that “our fight is only in it’s infancy,” that “I will throw every resource I have at this, and I will scream out and be as loud as I can possibly be until this is heard and accountability is had.” He described the court process as “the first day we get to officially fight back…this trial is going to be very public. Change is going to come either by acceptance or by force, but its coming.” In his cross-examination on his affidavit, Ken Jansen repeatedly referred to J.T. as a “demon child” and “little monster.” He described J.T. as “a train wreck of a kid.”

63Mr. Jansen’s anger is understandable. His family’s life has been gravely affected by what has happened. In his cross-examination, he said that he has experienced every emotion in relation to J.T. At times, he has hated J.T. At other times, he has felt sorry for J.T. He blames J.T.’s parents for not holding J.T. responsible for their various misbehaviours. He said that “if your point is to try to demonstrate that I dislike J.T, and [their] parents, I acknowledge that on the record now. I very much dislike them. They completely destroyed our lives because of a lie.”

64Mr. Jansen has demonstrated insight into his reactions. In cross-examination, he acknowledged that when he wrote his Facebook posts, he was emotional and “really heated.” However, since the trial, he has realized that he cannot hurt J.T. His goal is not to hurt J.T. Rather, his goal “is to get accountability for people.” He wants to have the publication ban that prohibits publication of any information that could identify J.T. lifted, and states in his affidavit that a motion will be made to the court to lift the publication ban and that “as plaintiffs, we think he should be called to answer in a very public way.” He believes this should be done, not to hurt J.T. or their parents, but to make what happened less likely to recur. He wants “accountability so this will … be less likely to happen again.” This action, according to Mr. Jansen, is not about the money. “This was about accountability.”

65Initiating a civil action for the purpose of bringing a motion to set aside a criminal court order, made pursuant to s. 486.4 of the Criminal Code, prohibiting the publication, broadcast or transmission in any way of any information that could identify a complainant in a sexual assault case is at best misguided, and at worst, an abuse of process.

66While the civil justice system is in place to ensure that individuals can hold others accountable for wrongdoing, the fact that J.T. was 16 years old when they made their complaint to the police affects my assessment of the extent to which there is a public interest in permitting this action to proceed against J.T. As a minor when the events that give rise to this action occurred, J.T. required a court-appointed litigation guardian to make decisions in relation to the litigation on their behalf. Instead of proceeding in this manner, the plaintiffs waited until J.T. turned 18 and served them shortly after their 18^th birthday. The effect of this strategic decision was not to improve the plaintiffs’ position in the action on the merits. Rather, it had the effect of requiring an 18-year-old to undertake their own defence to the action. This strategic decision reflects a desire to make this litigation as difficult for J.T. as possible, and to use the court process to “hold [them] accountable,” regardless of whatever the ultimate outcome of the litigation may be.

(c) Conclusion

67While the plaintiffs have suffered great harm as a result of Ms. Jansen being charged with a crime, and prosecuted for that crime, on the basis of J.T.’s expressions that have been found to be false, I find that the public interest in allowing the action to continue against J.T. does not outweigh its deleterious effects on expression and public participation.

68The plaintiffs’ claim against J.T. lacks substantial merit. The causal link between J.T.’s complaint and the harm suffered by the plaintiffs is weak because of the intervening roles played by public institutions. Moreover, having regard to what is really going on in this litigation, and the chilling effect that permitting this action to continue against J.T. would have on all victims of sexual assault, and children in particular, I would dismiss the plaintiff’s claim because allowing the action to continue does not outweigh its deleterious effects on expression and public participation.

E. Should the police defendants’ crossclaim against J.T. be dismissed?

69A party cannot be held liable for contribution under the Negligence Act, RSO 1990, c N.1, unless that party is also liable to the plaintiff. Because the plaintiffs’ malicious prosecution action against J.T. is dismissed under s. 137.1 of the CJA, J.T. is not liable to the plaintiffs, and the police defendants cannot crossclaim for contribution.

F. Should the cross-motion of the police defendants granting them leave to serve their Amended Statement of Defence and Crossclaim be granted?

70The police defendants’ amended statement of defence and crossclaim was filed and served after J.T.’s s. 137.1 motion was filed and served. The police defendants, in filing their amended statement of defence and crossclaim overlooked s. 137.1(6).

71Section 137.1(6) provides:

Unless a judge orders otherwise, the responding party shall not be permitted to amend his or her pleadings in the proceeding,

(a) In order to prevent or avoid an order under this section dismissing the proceeding; or

(b) If the proceeding is dismissed under this section, in order to continue the proceeding.

72The police defendants, who are respondents to J.T.’s s. 137.1 motion, have brought a cross-motion for leave to amend their pleadings.

73Section 137.1(6) of the CJA does not prohibit the amendment of pleadings while a s. 137.1 motion is pending. Its limiting effect is restricted in two ways. First, it is only the responding party to the s. 137.1 motion that shall not be permitted to amend their pleadings. Second, the responding party shall not be permitted to amend their pleadings without a court order if their purpose in seeking the amendment is to prevent or avoid an order under s. 137.1 dismissing the proceeding, or to continue the proceeding if the proceeding is dismissed under s. 137.1. To summarize, the purpose of s. 137.1(6) of the CJA is to prevent the party that is responding to a s. 137.1 motion from amending its pleadings to frustrate the motion: Platnick v. Bent, 2024 ONSC 3943 (Div. Ct.), at para. 13.

74The original crossclaim by the police defendants claims against J.T. and the Kawartha Pine Ridge District School Board for contribution and indemnity with respect to the plaintiff’s claims. In the original crossclaim, the police defendants plead that “if the Plaintiffs have suffered the injuries and damages alleged in the Statement of Claim, which is not admitted, and if such injuries and damages were caused by negligence or other tortious conduct of the Co-Defendants as alleged by the Plaintiffs, then these Defendants are entitled to contribution and indemnity from the Co-Defendants.”

75The proposed amendment relates to the claim by the police defendants against J.T. The police defendants seek to amend their crossclaim by adding the following:

Further or in the alternative, if it is substantially found by a trier of fact that the Co-Defendant, J.T., “falsely and maliciously fabricated the allegations against Ashley solely to be vindictive and for the purpose of having her wrongfully charged and potentially convicted of criminal acts that [they] knew did not occur”, as alleged by the Plaintiffs in paragraph 12 of the Statement of Claim, these Defendants state that such facts constitute deceit for which these Defendants are entitled to recover from J.T. to the extent they are found liable.

The proposed amendment, in effect, particularizes the reference in the original statement of claim to “other tortious conduct.” The proposed amendment does not initiate any claim by the police defendants against J.T. independently of the plaintiffs’ claim. Rather, the proposed amendment can impact the litigation only if the plaintiffs prove the facts alleged in paragraph 12 of their statement of claim. The police defendants do not plead that J.T. falsely, maliciously or otherwise fabricated the allegations against the plaintiff. To the contrary, the police defendants deny the allegations contained in paragraph 12 of the statement of claim.

76I have already determined that the plaintiffs’ claim against J.T. for malicious prosecution must be dismissed. The plaintiffs’ claims against the remaining defendants are based on the torts of negligent investigation and negligence. J.T.’s motivations for making his complaint to the police are not relevant to the adjudication of those claims. The police defendants do not plead anything about J.T.’s motivations for making their complaint to the police.

77Therefore, the police defendants’ crossclaim, if amended as sought, would avoid and frustrate my order dismissing the plaintiffs’ claim against J.T. The police defendants shall not be permitted to amend their pleadings, and their cross-motion is dismissed.

G. Order anonymizing and prohibiting the publication of J.T.’s name and identifying information

78In this case, a Superior Court of Justice order anonymizing the civil proceedings and prohibiting the publication of J.T.’s name and identifying information is clearly appropriate to reinforce the existing Ontario Court of Justice order and ensure that the Order is not breached, in circumstances where the plaintiffs have expressed their desire to make J.T.’s name public.

H. Conclusion

79The following orders are made:

1. The plaintiffs’ action against J.T. is dismissed pursuant to s. 137.1 of the CJA.

2. The plaintiffs’ cross-motion to dismiss J.T.’s motion is dismissed.

3. The police defendants’ cross-motion for leave to amend their statement of defence and crossclaim is dismissed.

4. The police defendants’ crossclaim is dismissed pursuant to s. 137.1 of the CJA.

5. The publication of the name of the defendant J.T. and any information that would identify J.T., including the names of their family members and any publication of J.T.’s name in relation to the plaintiffs or these proceedings, including in any social media or other publication authored by the plaintiffs, is prohibited.

80If the parties are unable to agree as to costs, I will receive submissions in writing. The parties are to specifically address the application of s. 137.1(7) of the CJA, and for that reason are permitted to file longer submissions than would otherwise be acceptable. Any such submissions are limited to four pages in length in addition to a bill of costs. Submissions on behalf of J.T. are to be filed by March 20, 2026. Submissions on behalf of the other parties are to be filed by March 31, 2026. In addition to filing submissions in the ordinary course, the parties are directed to also provide my assistant with a copy of their submissions, directed to my attention, by email to hannah.sewpersaud@ontario.ca.

The Honourable Justice J. Speyer