SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Michael Chan
AND:
His Majesty The King In The Right Of Canada, The Attorney General Of Canada, The Canadian Security Intelligence Service, David Vigneault, John Doe, Jane Smith, Sam Cooper and Robert Fife.
BEFORE: Merritt J.
COUNSEL: John Chapman, Manav Singhla, for the Plaintiffs
Ani Mamikon, for His Majesty The King In The Right Of Canada, The Canadian Security Intelligence Service, David Vigneault and The Attorney General Of Canada
Carlos Martins, Emma Romano, for Robert Fife
Ryder Gilliland, Brendan J. Hughes, for Sam Cooper
HEARD: December 11 and 12, 2025
ENDORSEMENT
OVERVIEW
1The Plaintiff Michael Chan is the Deputy Mayor of Markham-Unionville and a councillor in York Region since 2022. He was formerly a Member of the Legislative Assembly of the Province of Ontario from 2007 to 2018.
2The Defendant Robert Fife is a journalist with The Globe and Mail. At the relevant time, the Defendant Sam Cooper worked as an online investigative journalist for Global News.
3Mr. Chan sues the journalists because of articles published about him in The Globe and Mail and Global News containing leaked information that the Canadian Security Intelligence Service’s (“CSIS”) believed that Mr. Chan orchestrated a political nomination to assist a Chinese Communist Party (“CCP”) favoured candidate to succeed and was himself a high level CCP agent.
4On February 13, 2023, May 12, 2023 and May 19, 2023, Mr. Fife co-authored three articles that were published by The Globe and Mail that detail CSIS’ alleged surveillance of Mr. Chan (including a warrant sought under s. 21 of the Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23, (the “CSIS Act”)), briefings to senior federal government officials about Mr. Chan’s connections with Chinese consular officials, and the government’s alleged failure to act in a timely manner on that information. Mr. Fife received certain information reported in these articles from his confidential sources. Mr. Fife also relied on a variety of other sources and included commentary from Mr. Chan on the allegations pertaining to him in the articles. At issue are three of numerous articles co-authored by Mr. Fife and published by The Globe and Mail concerning Chinese foreign interference in Canadian political systems, the vast majority of which make no mention of Mr. Chan.
5On February 25, 2023, Mr. Cooper authored an article published by Global News under the heading “Liberals ignored CSIS warning on 2019 candidate accused in Chinese interference probe: sources”. Mr. Cooper’s article was based, in part, on information provided by his confidential sources.1
6The moving Defendants Mr. Cooper and Mr. Fife2 bring motions to dismiss this action under s. 137.1 of the Courts of Justice Act, R.S.O.1990, c. C.43 (the “CJA”) as being a proceeding that arises from expressions made by them that relate to a matter of public interest. The other Defendants did not participate in the motion.
7The action is not a defamation action; it is a conspiracy action.
8The Globe and Mail and Global News are broadcasters and therefore no action for libel can be brought against them unless the plaintiff serves a libel notice pursuant to s. 5 of the Libel and Slander Act, R.S.O. 1990, c. L.12. Mr. Chan did not serve a libel notice and he does not dispute that a claim for defamation is statute-barred.
9Mr. Chan has sued Mr. Cooper and Mr. Fife for unlawful means conspiracy alleging that they conspired with certain confidential sources identified by the pseudonyms John Doe and Jane Smith, who work for CSIS and induced them to breach the Foreign Interference and Security of Information Act, R.S.C. 1985, c. O-5 (the “SOIA”).
10Mr. Chan pleads that Mr. Cooper published articles and made social media posts with false allegations about him. He says that Mr. Cooper conspired with his sources Mr. Doe and Ms. Smith to use unlawfully obtained classified secret official information from CSIS to harm him by portraying him as an agent for the Chinese government and disloyal to Canada.
11In the same action, Mr. Chan has sued Mr. Fife for engaging in a separate conspiracy with his own sources Mr. Doe and Ms. Smith. Mr. Chan says that Mr. Fife’s actions in furthering the conspiracy are separate from those of Mr. Cooper but involve similar conduct to that alleged against Mr. Cooper.
12The Articles, together with news reports from others, led to the appointment of a Special Rapporteur on Foreign Interference and the Public Inquiry into Foreign Interference in Canada to investigate foreign interference in Canada. Mr. Chan applied for standing at the Public Inquiry and incurred significant legal costs in doing so.
13Mr. Chan claims $9,000,000 in damages for pain, embarrassment, humiliation, stress and damage to his reputation as well as threats to his personal wellbeing and that of his family as a result of the conspiracies. Mr. Chan also claims $1,000,000 for punitive damages against the journalists and their sources.
14Mr. Fife and Mr. Cooper submit that Mr. Chan’s lawsuit is a fundamentally flawed and thinly veiled attempt to intimidate journalists by seeking to pierce journalist-source confidentiality. They say it is a defamation action dressed up as a tort claim. There was no conspiracy and permitting the action to proceed would have a profound chilling effect on the flow of information from confidential sources and would seriously impair the media’s ability to inform the public on important matters of public interest.
15Mr. Chan brought a motion for substituted service of the Statement of Claim on John Doe and Jane Smith, via Mr. Fife and Mr. Cooper. That motion is held in abeyance pending the determination of this motion.
16At the outset of the hearing, the Plaintiff indicated that he would move for an order amending his pleading in accordance with a draft Amended Statement of Claim provided. The Defendants indicated that they would oppose the motion and the Plaintiff withdrew it.
THE ISSUES
17The issues are as follows:
Have the Defendants established that this proceeding arises from expressions that relate to matters in the public interest?
If so, has the Plaintiff established the following:
a) There are grounds to believe that the claim has substantial merit;
b) There are grounds to believe that the Defendants have no valid defences; and,
c) The harm to the Plaintiff is likely to, or has suffered, because of the expression is sufficiently serious that the public interest in permitting the action to continue outweighs the public interest in protecting the expression.
DECISION
18The motion brought by the Defendants pursuant to s. 137.1 is granted. I dismiss the Plaintiff’s action against Mr. Fife and Mr. Cooper.
THE CLAIM
19Mr. Chan alleges that Mr. Doe and Ms. Smith committed unlawful acts when they communicated secret official information to Mr. Fife and Mr. Cooper. Mr. Chan alleges that Mr. Doe and Ms. Smith intentionally breached the provisions of the SOIA by disclosing information that was entrusted to them by a person holding office under His Majesty the King or because of their positions as persons who hold or have held office under His Majesty the King.
20The alleged secret official information includes information about the existence of CSIS investigations relating to alleged activities of the Chinese government, the investigations alleged interaction with Canadian politicians of Chinese ethnicity and classified briefings to the Canadian government on these issues. Mr. Chan alleges that Mr. Doe and Ms. Smith identified to the press a number of specific Canadian politicians of Chinese ethnicity as being the subject of CSIS investigations and reported on their alleged activities.
21Mr. Chan alleges that by February, 2023 Mr. Doe and Ms. Smith’s illegal actions in leaking secret official information to Mr. Cooper helped plant in the minds of the public that CSIS believed that the Chinese government had given $250,000 in cash to Liberal candidates for public office, that there was a network of operatives in the Greater Toronto Area that was advancing the goals of the Chinese Communist party and that a Chinese “agent” was assisting Canadian candidates for political office.
22Mr. Chan alleges that Mr. Doe and Ms. Smith then targeted him in their leaks and shared CSIS intelligence information with the intent that it would be re-published by the press and personally harm him and his reputation.
23At para. 36 of his claim Mr. Chan alleges that Mr. Doe and Ms. Smith communicated the following information about him:
(a) to Mr. Fife of The Globe and Mail the (unfounded and inaccurate) view of certain segments of CSIS to the effect that Mr. Chan was improperly associating with persons who might be “intelligence actors” on behalf of the government of China on matters that were “election–related”, and that Mr. Chan had been mentioned in (classified) intelligence briefings to the federal government;
(b) to Mr. Cooper of Global News that: (i) Mr. Chan was a “target of CSIS”, (ii) that CSIS’ information was that Mr. Chan was a “political kingmaker” of the Liberal party and had (in an unspecified manner) “orchestrated” the removal of a candidate for nomination in a federal riding and replacement of him with a candidate that allegedly was favoured by the Chinese government, (iii) that Mr. Chan had provided (unspecified) “political information” to the Chinese consulate in Toronto, and (iv) that Mr. Chan’s actions threatened Canadian election integrity; and
(c) to Mr. Cooper of Global News, a July 2018 CSIS document that allegedly (and incorrectly): (i) claimed that Mr. Chan favoured the interests of China, (ii) that Mr. Chan provided political information to the Chinese consulate, and (iii) that Mr. Chan had offered to attack other politicians who raised Chinese human rights issues.
24Mr. Chan pleads that the secret official information referred to above was repeated by Mr. Cooper and Mr. Fife in the Articles.
ANALYSIS
25The Defendants move for an order dismissing the claim under s. 137.1 of the CJA (“s. 137.1”), which provides as follows:
(1) The purposes of this section and sections 137.2 to 137.5 are,
(a) to encourage individuals to express themselves on matters of public interest;
(b) to promote broad participation in debates on matters of public interest;
(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.
(2) 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.
(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.
(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,
(a) there are grounds to believe that,
(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the proceeding; and
(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
(6) 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.
26Section 137.1 provides a preliminary screening mechanism to prevent strategic lawsuits in matters of public interest: Hansman v. Neufeld, 2023 SCC 14, [2023] 1 S.C.R. 519, at paras. 49 - 50; 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at para. 16. The objective is to quickly identify and deal with strategic lawsuits, and ensure abusive litigation is stopped but that legitimate action can continue: Pointes, at paras. 61 and 62.
27Only a limited weighing of evidence to assess the criteria under s. 137.1 is required and contested issues of fact and credibility and competing inferences drawn from contested facts are not to be resolved: Hamer v. Jane Doe, 2024 ONCA 721, 501 D.L.R. (4th) 136, at para. 37, citing 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, Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 65.
28The onus is on the Defendants to show, on a balance of probabilities, that the proceeding arises from an expression made by them that is related to a matter of public interest. If they satisfy that onus, the onus then shifts to the responding party to satisfy the criteria under s. 137.1(4): Hamer, at para. 39 citing Pointes, at para. 31 and 33; Bent, at para. 87; 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.
The Threshold Burden - s. 137.1(3)
29The question to be decided under this branch of the test is whether the Defendants have established that the action arises from expressions made by them that relate to matters of public interest: s. 137.1(4).
30Chinese foreign interference in Canadian political systems has been a concern in Canada for years. In February 2020, the Privy Council Office warned the Canadian government that an “active foreign interference network” on behalf of the Chinese state was at work during the 2019 Canadian federal election.
31Current and former CSIS officials have publicly stated that the government of the People’s Republic of China is the “foremost aggressor” among foreign states seeking to interfere Western countries’, including Canada’s, political systems. According to these officials, the Chinese government seeks to compromise and influence elected and other officials at all levels of government, and to interfere in certain elections and ridings through a variety of means, including by attempting to obtain information from unwitting Canadian politicians.
32CSIS’s July 2021 report, “Foreign Interference Threats to Canada’s Democratic Process”, stated that CSIS had been observing “steady and in some cases, increasing foreign interference by state actors” against Canada, which it saw as a “significant threat to the integrity of our democratic institutions, political system and fundamental rights and freedoms.”
33Since 2020, Mr. Fife has investigated and reported on the Chinese government’s alleged efforts to interfere in Canadian political systems. Between March 2020 and December 2022, Mr. Fife investigated and co-authored at least 17 stories relating to the Chinese government’s alleged efforts to interfere with Canadian political systems. Some of these articles incorporate information received from confidential sources. None of these articles refer to Mr. Chan.
34The Articles that are the subject of this action are:
February 13, 2023 - “CSIS warned Trudeau about Toronto-area politician’s alleged ties to Chinese diplomats by Mr. Fife”;
February 25, 2023 – “Liberals ignored CSIS warning on 2019 candidate in Chinese interference probe: sources” by Mr. Cooper
May 12, 2023 - “CSIS had kept tabs on expelled Chinese diplomat Zhao Wei for 3 years” by Mr. Fife;
May 19, 2023 - “Bill Blair took months to approve CSIS surveillance of Liberal powerbroker, national-security source says” by Mr. Fife
35The Articles pertain generally to allegations and reports of Chinese foreign interference in Canadian political systems and the Canadian government’s response to those allegations.
36The subject Articles are clearly expressions.
37Expression is defined in s.137.1(2) as “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.”
38Mr. Chan agrees that the Articles containing the leaked information are “expressions” by Mr. Fife and Mr. Cooper.
39A proceeding arises from an expression where the expression is somehow causally related to the proceeding and “proceedings arising from an expression are not limited to those directly concerned with expression, such as defamation suits”: Pointes, at para. 24.
40Mr. Chan agrees that s. 137.1 can relate to actions other than defamation suits.
41Mr. Chan submits that the heart of this case is the illegally leaked information from CSIS. He agrees that his damages flowing from the leaks also relate to the Articles.
42Mr. Chan’s conspiracy claims arise from Articles. Mr. Chan is claiming damages flowing from the publication of information shared by the sources. The journalists’ expressions in the Articles are causally related to this proceeding.
43Mr. Chan submits that, as a matter of law, classified information cannot be a “matter of public interest”. He says that to characterize secret official information as a matter of public interest would be entirely inconsistent with the public interest exception in s. 15 of the SOIA.
44Section 15 of the SOIA provides:
(1) No person is guilty of an offence under section 13 or 14 if the person establishes that he or she acted in the public interest.
(2) Subject to subsection (4), a person acts in the public interest if
(a) the person acts for the purpose of disclosing an offence under an Act of Parliament that he or she reasonably believes has been, is being or is about to be committed by another person in the purported performance of that person’s duties and functions for, or on behalf of, the Government of Canada; and
(b) the public interest in the disclosure outweighs the public interest in non-disclosure.
45In Pointes, the Supreme Court held that the principles applicable to the interpretation of the phrase “matter of public interest” under s.137.1(3) are those set out in Grant v. Torstar:
27In Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, this Court considered the question of how public interest in a matter is to be established. While that case concerned the defence of responsible communication to a defamation action, it also involved determining what constitutes a “matter of public interest”. The same principles apply in the present context. The expression should be assessed “as a whole”, and it must be asked whether “some segment of the community would have a genuine interest in receiving information on the subject” (paras. 101-2). While there is “no single ‘test’”, “[t]he public has a genuine stake in knowing about many matters” ranging across a variety of topics (paras. 103 and 106). This Court rejected the “narrow” interpretation of public interest adopted by courts in Australia, New Zealand, and the United States; instead, in Canada, “[t]he democratic interest in such wide-ranging public debate must be reflected in the jurisprudence” (para. 106).
46The impugned expression “should not be scrutinized in isolation”; rather, the question is whether “the subject matter of the communication as a whole is one of public interest” Grant v. Torstar, at para. 101.
47There is no qualitative assessment of the expression under s. 137.1(3) and it is not relevant whether the expression is “desirable or deleterious, valuable or vexatious, or whether it helps or hampers the public interest”: Pointes, at para. 28.
48There is no basis for restricting the definition of “public interest” under s. 137.1(3) to the narrow public interest definition in s. 15 of the SOIA.
49Even if, as the Plaintiff suggests, the definition of “public interest” under s. 137.1(3) should be the same as, or at a minimum be informed by, the narrow public interest definition in s. 15 of the SOIA (a proposition with which I do not agree) the expressions here go well beyond the leaked information about Mr. Chan.
50The expressions in the Articles were certainly based on leaked information from CSIS but they were not solely a repetition of leaked information. Mr. Fife’s February 13, 2023 article contains information from Mr. Chan, his background, information from a confident of International Trade Minister Mary Ng, information from Ms. Ng, and information about Mr. Chan’s libel action. Mr. Fife’s May 12 and 19, 2023 articles also contain extensive information from and about other individuals aside from Mr. Chan and the confidential sources.
51Mr. Cooper’s February 25, 2023 article also contains information from other sources, including from Mr. Chan, Mr. Dong, a spokesperson from the Prime Minister’s Office, information from an unnamed GTA Liberal politician, national security experts, officials from the Embassy of the People’s Republic of China, information about who can vote in a party nomination process and information from the Liberal Party director of communications.
52As Grant v. Torstar and Pointes direct, I must look at the subject matter of each of the communications as a whole. The subject matter of each of the communications is alleged Chinese foreign interference, the conduct of elected Canadian officials and the government’s response to information received from CSIS.
53There is no basis to find that allegedly illegally obtained information from a confidential source cannot be a matter of public interest. To hold that information is not in the “public interest”, because it may be classified or otherwise illegally provided, would severely limit important journalistic reporting.
54Confidential sources provide the public with important information. The Supreme Court of Canada has recognized the important public function played by confidential sources: Denis v. Côté, 2019 SCC 44, [2019] 3 S.C.R. 482, at paras. 45-47; R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477, at para. 28.
55In both Dong v. Global News, 2024 ONSC 3532, and Ke v. Cooper, 2024 ONSC 5532, the court found that the public interest bar under s. 137.1(4) was met. These two cases involved news stories prepared by Mr. Cooper and published by Global News regarding foreign interference. In these cases, Mr. Cooper relied on the same confidential sources and much of the same information as he did in the present case. In the Dong case, it was the same article being addressed. In Dong, Justice Perell said “it is indisputable that the Defendants’ stories about: (a) foreign government interference in Canadian political affairs; and (b) Dong and his communications with the Chinese diplomat are matters of public interest of the highest magnitude of importance”: at para. 79.
56Media reporting on foreign interference in 2022 and 2023 brought the issue of alleged foreign interference to the forefront of public attention. The public response included parliamentary committee hearings focused on the issue of foreign interference, the Prime Minister mandating the National Security and Intelligence Committee of Parliamentarians to investigate allegations of Chinese interference, public statements by CSIS regarding the scale of the threat of foreign interference, and the Public Inquiry into Foreign Interference in Canada.
57I am satisfied that the Defendants have met their onus to establish that the claim arises from expressions made by them relating to matters of public interest – namely, alleged Chinese foreign interference in Canadian political systems that pose a threat to Canada’s democratic sovereignty, the conduct of elected officials and the Canadian government’s response to those allegations.
The Merits-Based Hurdle - s.137.1(4)(a)
58If the defendant establishes that the expression relates to a matter in the public interest, the action is to be dismissed unless the plaintiff satisfies the court that (1) there are grounds to believe that the proceeding has substantial merit, (2) there are grounds to believe that the defendant has no valid defence and (3) the harm suffered by the plaintiff is sufficiently serious such that the public interest in allowing the proceeding to continue outweighs the public interest in protecting that expression: s. 137.1(4).
59The merits-based hurdle under s. 137.1(4)(a), that there are grounds to believe that the proceeding has substantial merit, and the moving party has no valid defences, is not a high bar. It is lower than the “balance of probabilities” standard which applies to the analysis under s. 137.1(3): Hamer, at para. 44, citing Pointes, at para. 35; Bent, at para. 87; Marcellin v. London (Police Services Board), 2024 ONCA 468, 498 D.L.R. (4th) 438, at para. 10.
60In the first part of the “merits-based hurdle” under s. 137.1(4)(a)(i), “the words ‘substantial merit’ are animated by a concern with making sure that, at a minimum, neither ‘frivolous’ suits nor suits with only ‘technical’ validity are sufficient to withstand a s. 137.1 motion. Substantial merit must mean something more”: Pointes, at para. 47.
61The “grounds to believe” standard requires only a single basis in the record and law, so long as it is legally tenable and reasonably capable of belief: Hamer, at para. 46, citing Bent, at para. 87-88, and Pointes, at para. 39.
62“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”: Pointes, at para. 49; Bent, at para. 90.
63“Section 137.1(4)(a)(ii) “operates as a de facto burden-shifting provision”; the moving 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: Hamer, at para. 48, citing Pointes, at paras. 56, 60 and Bent, at paras. 101, 103.
64Under s. 137.1(a)(ii) the limited burden on the plaintiff is to show that there exists any basis in the record or law to support a finding that the defences do not weigh more in favour of the moving defendant: Hamer, at para. 49, citing Bent, at para. 103.
65A finding that the defences could go either way is a finding they may not succeed and sufficient to meet the plaintiff’s burden under s. 137.1(a)(ii): Hamer, at para. 49, citing Subway Franchise Systems of Canada, Inc., at paras. 56, 57, and Bondfield Construction Company Ltd. v. The Globe and Mail Inc., 2019 ONCA 166, 144 O.R. (3d) 291, at para. 15.
66The criteria under ss. 137.1(4)(a)(i) and (ii), inform each other and should be assessed together; Hamer, at para. 50 citing Bent, at para. 101, citing Pointes, at paras. 59, 60.
The True Nature of the Claim is Defamation
67Where the true nature of the claim is defamation, it must be advanced as such. Where a claim is not framed as defamation but is based on harm to reputation, courts have concluded that the claim should be struck because it is exclusively governed by the law of defamation: Trizec Properties Inc. v. Citigroup Global Markets Inc. (2004), 2004 1548 (ON SC), 72 O.R. (3d) 265 (Ont. S.C.), at para. 12.
68A defamation claim cannot be ‘dressed up’ as other torts such as intentional interference in economic relations; inducing breach of contract; and infliction of mental suffering and anguish to evade the defences available in a defamation action: Byrne v. Maas, 2007 49483 (Ont. S.C.), at para. 9, citing Trizec Properties Inc.; Fulton v. Globe and Mail (1996), 46 Alta L.R. (3d) (A.B. K.B.), aff’d (1997) 1997 14835 (AB QB), 53 Alta L.R. (3d) 212, (A.B. K.B.).
69In Elliott v. Canadian Broadcasting Corp., claims for malicious falsehood, conspiracy, negligence and breach of fiduciary duty were struck out as attempts to disguise a claim for defamation because the whole claim rested on the publication of a film and a book: 1993 5508 (Ont. S.C.), at para. 42, aff’d 1995 244 (Ont. C.A.); see also Bai v. Sing Tao Daily Ltd., 2003 24013 (Ont. C.A.), at para. 21; Ryan v. C.B.C., 2021 SKQB 12, at para. 46.
70In this case Mr. Chan alleges emotional injuries, damages to his reputation and threats to himself and his family all of which flow from the publication of the Articles. The Defendants submit that his claim is dressed up as a conspiracy action, presumably because Mr. Chan failed to deliver a libel notice or because he seeks to avoid the defences available in a defamation action such as justification, fair comment or responsible communication in the public interest. I do not agree. I cannot find that on this basis alone, the Plaintiff has not established that there are grounds to believe that his claim has substantial merit and the Defendants have no valid defences.
71If this case were to proceed to trial, the Defendants might well succeed in persuading a court that it cannot be advanced as a conspiracy claim because it’s true nature is defamation. But that is not the test at this stage. The Plaintiff need only show that there are grounds to believe there is some basis in fact and law meaning facts that are reasonably capable of belief and a legally tenable claim. I am not satisfied that, because the underlying facts could also give rise to a defamation claim, Mr. Chan has failed to show that there is some basis in fact and law for his claim. I do not find that Mr. Chan’s claim is not legally tenable because it is a defamation claim dressed up as a conspiracy action.
72Next I will consider whether the Plaintiff has established that there are grounds to believe the conspiracy claim has substantial merit and any that defences raised by the Defendants have no real prospect of success; meaning a reasonable judge could reject all defences presented by the Defendants and conclude that there is no valid defence.
Conspiracy
73Mr. Chan pleads that, from at least 2019, Mr. Cooper was engaged in an ongoing and relentless campaign against him to portray him as an agent of the Chinese government and disloyal to Canada. This campaign included publishing an ongoing barrage of articles and posting Twitter comments repeating false CSIS related and other unfounded allegations.
74Mr. Chan pleads that Mr. Cooper cultivated Mr. Doe and Ms. Smith as sources and knowingly induced them to breach provisions of the SOIA.
75Mr. Chan pleads that Mr. Cooper conspired with Mr. Doe and Ms. Smith and induced them to commit the illegal act of breaching the SOIA by agreeing to give them public dissemination of the CSIS intelligence information in a manner which would allow them to be anonymous. It was also understood that Mr. Cooper would portray this CSIS information as coming from a reputable source and hence credible.
76Mr. Chan pleads that Mr. Cooper intended to harm him because Mr. Cooper believed that Mr. Chan was an agent for a malevolent force.
77Mr. Chan pleads that Mr. Cooper, Mr. Doe and Ms. Smith knew, or ought to have known, that Mr. Chan would likely suffer damages.
78Mr. Chan pleads that Mr. Fife has engaged in a separate conspiracy with his own sources in the same manner and with the same material elements as set out above with respect to Mr. Cooper.
79Mr. Chan pleads that the very nature of a conspiracy is that the defendant will often not have detailed knowledge of what has occurred. For this reason, the modern approach is not to insist on details up front in a conspiracy pleading, but to take a more flexible approach which will allow the details to emerge at discovery and for pleadings to be sharpened and amended prior to trial. In support of this proposition Mr. Chan relies on Blue Pier Administration Corp v. Bank of Nova Scotia et al., 2025 ONSC 257, at para. 24.
80Blue Pier Administration is distinguishable because it involved a motion to strike the statement of claim.
81I agree that at the outset of the litigation (i.e. the pleadings stage), Mr. Chan would not have the details of the interactions between the Defendants and their sources. However, this is not a pleadings motion. On this motion, both Mr. Cooper and Mr. Fife filed affidavits and were cross examined about those interactions.
82I am tasked with looking at the evidence on the motion to see if Mr. Chan has shown that there are grounds to believe that his claim has substantial merit. As set out above under s. 137(a) the “grounds to believe” standard requires a basis in the record and law that is legally tenable and reasonably capable of belief. “Substantial merit” means a real prospect of success, not a demonstrated likelihood of success, but a claim that tends to weigh more in favour of the plaintiff.
83The Plaintiff has not established that there are grounds to believe his claims for conspiracy have substantial merit, as I will demonstrate below.
84There are two categories of the tort of conspiracy:
First, where the predominant purpose of the defendant's conduct is to cause the plaintiff injury, whether or not the defendant’s means were lawful; and
Second, where the defendant’s conduct is unlawful and directed towards the plaintiff (alone or with others) and the defendant should know that injury to the plaintiff is likely to occur, and does result—notwithstanding the fact that the predominant purpose of defendants’ conduct is not necessarily to cause injury to the plaintiff.
See Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 23 (SCC), [1983] 1 S.C.R. 452, (S.C.C.), at pp. 471-472.
Unlawful means conspiracy
85The test for unlawful means conspiracy is:
Two or more people acted in concert, by agreement, or with a common design;
The conduct was “unlawful” meaning a crime, a tort, a breach of contract, breach of fiduciary duty or breach of statute;
The conduct was directed towards the plaintiff;
The defendants knew or ought to have known that injury to the plaintiff was likely to result; and
Injury or harm did result.
Catalyst Capital Group Inc. v. West Face Capital Inc., 2021 ONSC 7957, at paras. 364-371, and Agribrands Purina Canada Inc v. Kasamekas, 2011 ONCA 460, 106 O.R. (3d) 427, at paras. 24-26.
I will now address each element of the test.
Acting in concert, by agreement, or with a common design
86Mr. Fife had four government sources for his articles about Mr. Chan which he refers to as confidential sources “A”, “B” and “C” and “D”. Mr. Fife says that sources “A” and “D” were national security sources and sources “B” and “C” were government sources who had received briefings.
87Prior to any leaks to Mr. Fife about Mr. Chan, source A had already leaked classified information to Mr. Fife about a briefing to senior government officials, including the Prime Minister, concerning China possibly assisting in the election efforts of 11 (unnamed) candidates. Mr. Fife had written an article dated December 21, 2022 containing that information.
88Mr. Fife then followed up with source A where he sought more intelligence information, including information on Mr. Chan. Starting in January 2023, Mr. Fife received classified information about Mr. Chan from source A and then from sources B, C and D.
89Mr. Fife says the first leak relating to Mr. Chan (initially from source A and then largely confirmed by sources B and C) was that there had been a security briefing by CSIS to the Prime Minister’s Office that had contained a warning about Mr. Chan. Sources A, B, and C also told Mr. Fife that CSIS had a dossier on Mr. Chan relating to his activities in the 2019/2021 elections and that the warning to the PMO’s office had included a warning about Mr. Chan’s involvement with an election campaign by Mary Ng.
90Mr. Fife says he then followed up to see whether he could get more detailed knowledge on Mr. Chan. He says he contacted someone, told this person what he was looking for and this person gave him the name of source D who had the details on Mr. Chan.
91Mr. Fife met with source D about four times and obtained the following information:
a) CSIS had observed Mr. Chan meeting in the past years with Chinese diplomat Zhao Wei, whom one source describes as a ‘suspected intelligence actor,’ and Beijing’s former vice-consul-general Zhuang Yaodong. CSIS believes Mr. Zhuang handled security files out of the Toronto consulate;
b) Mr. Zhao’s code-name for Mr. Chan is ‘The Minister’;
c) In 2019, Mr. Chan had a number of meetings with Mr. Zhao that were described in a CSIS 2020 briefing package as ‘clandestine in nature’ and were allegedly ‘election-related’; and
d) In 2019 CSIS observed Mr. Chan and an associate meeting with Mr. Zhao and Mr. Zhuang at a Chinese restaurant.
92Source D also showed Mr. Fife documents that were “secret” or “top secret” and that source D removed these documents from government offices and returned them.
93The information from sources A, B, C and D about Mr. Chan is in Mr. Fife’s article of February 13, 2023, and some of it is repeated in Mr. Fife’s article of May 12, 2023.
94Source D later told Mr. Fife that:
CSIS had sought an electronic and entry warrant to monitor Mr. Chan in the lead up to the 2021 federal election;
CSIS regarded Mr. Chan as a national security target and sought a s. 21 warrant under the CSIS Act in early 2021;
CSIS wanted to intercept Mr. Chan’s electronic communications and gain entry to his home and offices in what was expected to be a federal election year; and
Mr. Chan had been under physical surveillance for years.
95This later information is contained in Mr. Fife’s May 19, 2023 article which also contains the prior information about Mr. Chan being observed with Chinese officials and related intelligence assessments.
96Mr. Fife outlines the agreement he had with his sources in his affidavit:
- I gave an undertaking of confidentiality in exchange for the Confidential sources providing information that was in the public interest and could not be reliably obtained without the promise of confidentiality. Given the highly sensitive nature of the information provided by the Confidential Sources, they were only willing to share such information on the condition The Globe grant them confidentiality.
21.Granting confidentiality is a crucial tool for me when reporting matters of public interest when sources are whistleblowers or are disclosing highly sensitive information which, if their identity were disclosed, could have damaging consequences for a source’s employment or liberty, which was the case with each of the Confidential Sources.
97Mr. Cooper’s evidence is that he was approached by his confidential sources who provided information for his February 25, 2023 article. He says that in 2020 he was in contact with a Canadian intelligence official who provided him with information related to the issue of election interference in the greater Toronto area. In subsequent meetings, three other confidential intelligence sources provided him with information regarding CSIS’s investigation of foreign interference around the 2019 election including information about Mr. Chan and his alleged involvement in foreign interference. Each of the four sources approached Mr. Cooper separately and were unaware that the others had approached Mr. Cooper.
98Mr. Cooper’s evidence is that each of his confidential sources provided information to him and he agreed to keep their identities confidential as they feared prosecution and/or risk to their employment. Ultimately, Global News also agreed to keep their identities confidential when publishing his February 25, 2023 article and other articles focusing on Chinese foreign interference.
99Mr. Cooper’s uncontradicted evidence is that he never had any agreement with any of his confidential sources beyond his promise to keep their identities confidential. Mr. Cooper never agreed with any of the confidential sources that he would publish any of the information they provided to him. Mr. Cooper says that such an agreement would not be tenable because he was only a reporter, not a publisher. Mr. Cooper’s evidence is that he never agreed with any of his confidential sources that he would make attempts to persuade Global News to publish any of the information. Mr. Cooper says he never agreed to portray any of the information received from the confidential sources in any way, and none of the confidential sources had any editorial input into the February 25, 2023, article.
100Mr. Chan submits that the agreements made also included the Defendants providing the sources an opportunity to have their information made public.
101I accept that the Defendants and the sources must have known that there was at least a possibility that the information would be made public, but this falls short of establishing reasonable grounds to believe that there was an agreement to do so.
102As set out above, Mr. Chan says that part of the agreement was that it was also understood that Mr. Cooper and Mr. Fife “would portray this CSIS information as coming from a reputable source and hence credible”.
103Mr. Fife’s uncontested evidence is that he “never agreed to publish specific information provided or to portray information about Chan in a specific way to lend credibility to such information”. Mr. Chan has provided no basis to contradict Mr. Fife’s evidence that he could never make such promises, as the final decision about what is published in The Globe and Mail is not his, but that of his editors.
104Mr. Cooper’s uncontested evidence is that he did not agree to publicly disseminate any of the information provided to him and that the only agreement that he had was to protect the identities of the confidential sources.
105The Plaintiff has not established any basis in fact or law to find that there was an agreement to publish the stories, or publish them in a certain way.
106The Plaintiff has not satisfied me that there are grounds to believe that there was any agreement other than an agreement to maintain confidentiality with respect to the sources’ identity. The Plaintiff has not satisfied me that there are grounds to believe that there was any agreement to publish the Articles or to portray the CSIS information as coming from a reputable source or credible.
Unlawful Conduct
107There must be unlawful conduct by each conspirator: Agribrands, at para. 28 citing Bank of Montreal v. Tortora, 2010 BCCA 139, 3 B.C.L.R. (5th) 39; Bank of Montreal, at para. 47.
108“There is no basis for finding an individual liable for unlawful conduct conspiracy if his or her conduct is lawful or, alternatively, if he or she is the only one of those acting in concert to act unlawfully. The tort is designed to catch unlawful conduct done in concert, not to turn lawful conduct into tortious conduct”: Agribrands, at para. 28.
109An unlawful means conspiracy claim cannot be extended to include co-conspirators who are not alleged to have committed any wrongful act: Tortora, at para. 37, citing Frame v. Smith, 1987 74 (SCC), [1987] 2 S.C.R. 99 at p. 109. Knowledge of another’s unlawful act is not enough: Tortora, at paras. 40-42.
110Mr. Chan pleads that Mr. Doe and Ms. Smith’s actions were unlawful pursuant to the SOIA and that Mr. Fife and Mr. Cooper induced them to breach the SOIA by “agreeing to give them public dissemination of the CSIS intelligence information in a manner which would allow them to be anonymous”.
111Mr. Cooper and Mr. Fife say that the SOIA provision upon which Mr. Chan relies has been declared unconstitutional, and, in any event, Mr. Chan does not plead any independent unlawful act by them in furtherance of the alleged conspiracy, which is a necessary element of the cause of action.
112In his claim Mr. Chan pleads that pursuant to s. 10 and Schedule 1 of the CSIS Act, the informants made and are bound by statutory oaths of secrecy not to disclose information acquired in the course of their duties. Alternatively, Mr. Chan pleads that the informants were employees of other branches of the Canadian government with access to CSIS reports and secret official information.
113Mr. Chan pleads that CSIS officials are required to comply with the statutory oath of secrecy and with s. 4(1)(a) of SOIA which makes it an offence to communicate to others secret official information that has been entrusted to them.
114Mr. Chan pleads that Mr. Doe and Ms. Smith were subject to and bound by SOIA “which makes it an offence to communicate to others secret official information that has been entrusted in confidence to them by a person holding office under His Majesty or owing to their position as a person who holds or has held office under His Majesty.”
115Mr. Chan pleads that Mr. Doe and Ms. Smith were aware of their statutory oath of secrecy and the provisions of SOIA but intentionally breached both provisions and committed unlawful acts by leaking information to Mr. Cooper and Mr. Fife including information about the existence of CSIS investigations related to alleged activities of the Chinese government, its alleged interaction with Canadian politicians of Chinese ethnicity, including Mr. Chan and classified briefings to the Canadian government on such issues.
116The Defendants submit that Mr. Chan’s claim is not legally tenable because s.4(1)(a) of the SOIA was struck down as unconstitutional and declared of no force and effect for being overbroad and vague, infringing a principle of fundamental justice and seriously restricting freedom of expression and freedom of the press: in O’Neill v. Canada (Attorney General) (2006), 2006 35004 (ON SC), 82 O.R. (3d) 241 (Ont. S.C.), at paras. 109-110.
117Mr. Chan submits that there has been no judicial finding that the provisions of the SOIA dealing with leaks by CSIS officials (i.e. those who leak information they know “as a result of their position with the government” or who are “permanently bound to secrecy”) are unconstitutional.
118Mr. Chan says one aspect of the legislation is subject to an appeal: R. v. Ortis, 2024 ONCA 250; See also Alford v. Canada (Attorney General), 2024 ONCA 306.
119It does not matter if s. 4(1)(a) is unconstitutional. At Mr. Chan’s cross examination his counsel said that he was relying on s.4(1)(a); however, I accept that this was an oversight by counsel. The Defendants did not plead that s. 4(1)(a) is unconstitutional nor did they draw counsel’s attention to the O’Neill case upon which they now rely. Mr. Chan’s pleading is not confined to s.4(1)(a). He has pled more generally that the confidential sources “engaged in a campaign of repeatedly unlawfully disclosing (i.e. leaking) classified information in violation of the [SOIA].
120Under SOIA it is an offence (ii) For a person permanently bound to secrecy to communicate “special operational information” (whether or not it is true), which includes information which reveals or from which it may be inferred that a person is subject to a covert investigation: ss. 13, 14 and 8.
121CSIS officers are permanently bound to secrecy: SOIA, s. 8(1) and Schedule 1.
122In relation to the electronic search warrant directed at Mr. Chan and revealed to Mr. Cooper, s. 27 of the CSIS Act requires that applications for such warrants be made in private. The secrecy surrounding such applications is reflected in the fact that there is a special, highly secure, “bunker” where such applications are heard.
123Each of Mr. Fife’s three Articles which are the subject of this action says “The Globe and Mail is not identifying the sources, who risk prosecution under the Security of Information Act.” Similarly Mr. Cooper’s article says “These sources spoke to Global News on the condition of anonymity, which they requested because they risk prosecution under the Security of Information Act.”
124Mr. Fife knew that briefings on national security matters were confidential where the material discussed may well be classified. Mr. Fife knew that the electronic surveillance warrants were granted in a highly secret process and knew that source D might be in violation of a statute in providing this information to him.
125Mr. Cooper knew that his sources were potentially violating federal statutes by providing him with confidential information, and knew that court hearings under s. 21 of CSIS Act are held in private.
126Even if I were to find that there are grounds to believe that Mr. Doe and Ms. Smith committed unlawful acts when they leaked information to Mr. Cooper and Mr. Fife and that Mr. Cooper and Mr. Fife were aware of this fact, the Plaintiff has not satisfied me that there are grounds to believe that Mr. Cooper’s and Mr. Fife’s conduct was unlawful.
127The Plaintiff has not satisfied me that Mr. Cooper’s and Mr. Fife’s knowledge that Mr. Doe and Ms. Smith were committing an illegal act is sufficient to establish that Mr. Cooper and Mr. Fife induced them to do so and thereby committed unlawful acts themselves.
128Mr. Cooper and Mr. Fife did not say or do anything to encourage Mr. Doe and Ms. Smith to provide the leaked information other than being open to receiving it and making general enquiries.
129Mr. Chan’s position involved circular reasoning. He says that Mr. Cooper and Mr. Fife participated in a conspiracy with their sources and the Defendants’ illegal conduct was inducing their sources to breach the SOIA. There is no evidence that Mr. Cooper or Mr. Fife did anything to induce Mr. Doe and Ms. Smith to breach the SOIA, other than receive the information. Mr. Chan says that by participating in the conspiracy by receiving the information, Mr. Cooper and Mr. Fife induced their sources to breach the SOIA. If that reasoning were to prevail, it would completely undermine the requirement that there be unlawful conduct by each conspirator.
Conduct Directed at the Plaintiff
130Mr. Chan has not shown that there are grounds to believe that the Defendants’ agreements to obtain information from, and maintain confidentiality of the identity of the sources, were directed at him.
131Mr. Chan has not shown that there are grounds to believe that the Defendants’ conduct in gathering information from their sources about Chinese foreign interference and writing the Articles was directed at him. The Articles detail intelligence information about Mr. Chan but go well beyond Mr. Chan and are directed at the federal government’s handling of intelligence on Chinese foreign interference.
132In particular, Mr. Fife’s reporting on Chinese interference without any reference to Mr. Chan before and after his articles which are the subject of this action, which include information from some of the same confidential sources, belies any ongoing campaign against Mr. Chan.
133Mr. Cooper also prepared various stories on the issue of foreign interference relying on information obtained from his four confidential sources that were published by Global News in 2022 and 2023. The focus of Mr. Cooper’s February 25, 2023 article was former Liberal MP Han Dong, and allegations of irregularities in the Don Valley North riding during the 2019 federal election.
Defendant’s Knowledge of Injury
134The Plaintiff has not shown that there are grounds to believe that the Defendants knew or ought to have known injury to the Plaintiff was likely to result from their agreements to keep the identity of their sources confidential or by their receipt of the information.
135Had I found that Mr. Chan had established reasonable grounds to believe that the agreement was to publish the articles, which I have not, I would have found that there are grounds to believe that the Defendants ought to have known that injury to the Plaintiff was a likely result.
Injury or Harm
136The Plaintiff has not shown that there are grounds to believe that there was injury or harm to him as a result of the Defendants’ agreements to keep their sources’ identities confidential or by the Defendants’ receipt of the information as opposed to harm from the publication of the Articles. Had the Articles not been published, Mr. Chan would not have suffered any injury or harm.
137Had I found that Mr. Chan had established that there were reasonable grounds to believe that the Defendants had acted in concert with, had an agreement with or a common design with the sources to publish the stories, that the Defendants’ conduct was unlawful and directed at Mr. Chan, I would find that there are grounds to believe Mr. Chan suffered some injury or harm and that the Defendants’ knew or ought to have known that Mr. Chan would be harmed.
138The Plaintiff has not shown that the unlawful means conspiracy claim is legally tenable.
Predominant purpose conspiracy
139A predominant purpose conspiracy requires that the defendants’ predominant purpose is to inflict harm on the plaintiff. “It is not enough if harm is the collateral result of acts pursued predominantly out of self-interest,” and the focus of the inquiry is on the intent of the defendant, rather than the real or potential consequences: Lilleyman v. Bumblebee Foods LLC, 2023 ONSC 4408, at para. 99-100, citing Mancinelli v. Royal Bank of Canada, 2020 ONSC 1646; Harris v. GlaxoSmithKline Inc., 2010 ONCA 872, 106 O.R. (3d) 661, at para. 39.
140Mr. Chan’s Statement of Claim does not expressly plead predominant purpose conspiracy. All of his conspiracy pleadings fall under the headings “Cooper-Unlawful Means Conspiracy” (paras. 43 to 48) and “Fife-Unlawful Means Conspiracy” (para. 49).
141At para. 47, Mr. Chan pleads that “Cooper conspired with Doe and Smith with the intent that Chan would suffer damage given Cooper’s (unfounded) belief that Chan was an agent for a malevolent force. Nowhere does Mr. Chan plead that the predominant purpose of the alleged conspiracy was to harm him.
142Mr. Chan’s factum does not address predominant purpose conspiracy, nor was it addressed in argument on the motion.
143There is no evidence of the actual motivation of the sources. Mr Chan submits that I can infer that the sources wanted to “out” Mr. Chan because they viewed him as doing China’s bidding, otherwise they could have provided information on their concerns regarding government inaction without mentioning Mr. Chan’s name.
144Even if Mr. Chan had pled predominant purpose conspiracy, I would not have found that Mr. Chan has shown that there are reasonable grounds to believe this claim has substantial merit. There are no facts reasonably capable of belief to support the proposition that the predominant purpose of the Articles was to harm Mr. Chan. The uncontradicted evidence of Mr. Cooper and Mr. Fife was that their purpose was to report on foreign interference, the activities of elected officials and specifically Mr. Chan as part of their jobs as investigative reporters.
Misfeasance in Public Office
145In his factum Mr. Chan argues that “the reporters encouraged/induced and (as the recipients of the information) participated in the illegal leaks. As this term is used in the case law, they acted “in concert” in the tort of misfeasance of public office and are joint tortfeasors.”
146Mr. Chan pleads that Mr. Doe and Ms. Smith’s actions in disclosing secret official information constitute misfeasance in public office. Mr. Chan did not plead that Mr. Cooper or Mr. Fife are liable for the tort of misfeasance in public office.
147In his proposed amended Statement of Claim, under the heading “Doe and Smith: Unlawful Acts and Misfeasance in Public Office” Mr. Chan pleads that “… Fife and Cooper induced, encouraged, assisted and participated in the acts that amounted to misfeasance in public office and hence acted in concert with Doe and/or Smith.”
148Neither in the Statement of Claim, nor in the proposed amended claim did Mr. Chan plead that Mr. Cooper and Mr. Fife were each joint tortfeasors together with Mr. Doe or Ms. Smith.
149As set out above, Mr. Chan abandoned his motion to amend his claim.
150Mr. Chan has not shown that there are grounds to believe a claim against Mr. Cooper or Mr. Fife as joint tortfeasors for the tort of misfeasance in public office has substantial merit because it was not pled.
151Even if Mr. Chan had properly pleaded that Mr. Cooper and Mr. Chan were each liable as joint tortfeasors with their respective sources for the tort of misfeasance in public office I would not find that Mr. Chan has shown there are grounds to believe this claim has substantial merit.
152Mr. Cooper and Mr. Fife are not public officials and could not be independently liable for misfeasance in public office.
153There is no tort of assistance or inducement to commit a tort. Liability as a joint tortfeasor only applies if the incitement or assistance to commit the tort was done “pursuant to a common design”: I.C.B.C. v. Stanley Cup Rioters, 2016 BCSC 1108, at paras. 20-21, citing Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5, at para 152, as well as other leading authorities from the English House of Lords and Supreme Court.
154Mr. Chan has cited no cases in which joint tortfeasor liability on the basis of “common design” has been applied to a non-public official.
155Courts have cautioned that “this basis of tortious liability had to be kept within reasonable bounds” and that “[t]he principal concern of the law in this area is to recognize a liability for assisting the commission by the primary actor of a tort, while ensuring that the mere facilitation of the tort will not give rise to such a liability, even when combined with knowledge of the primary actor’s intention”: I.C.B.C., at para. 30, citing Sea Shepherd UK v Fish & Fish Limited [2015] UKSC 10.
156There is no evidence that there was a “common design” to commit the tort of misfeasance in public office. The only evidence of an agreement was an agreement to keep the identity of the sources confidential.
157Mr. Chan has not shown that the claim against Mr. Cooper and Mr. Fife each as joint tortfeasors in the tort of misfeasance in public office, even if properly pled, has substantial merit.
158Mr. Cooper and Mr. Fife do not advance any defences other than that Mr. Chan has not made out the elements of the tort of conspiracy or the tort of misfeasance in public office.
Public Interest Hurdle - s.137(4)(b)
159The Supreme Court in Pointes instructed that regardless of whether or not a plaintiff has shown that a claim has substantial merit, weighing the public interest in freedom of expression and public participation against the public interest in vindicating a meritorious claim is still required: para. 62. The weighing exercise runs throughout the entire legislative history, and is the “crux” or “core” of the analysis: Pointes, at paras. 61-63.
160Under this branch of the test, the plaintiff must show that the harm the plaintiff likely has suffered or will suffer as a result of the defendant’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression: Gill v. McIver, 2022 ONSC 1279, at para. 15.
Harm to Mr. Chan
161In this case Mr. Chan must establish that the harm to him caused by Mr. Fife’s and Mr. Cooper’s expression in the Articles outweighs the public interest in protecting their expressions including the information from confidential sources. The first step is to determine the nature and extent of the harm to the plaintiff caused by the defendant’s expression. The plaintiff must demonstrate the existence of harm and causation but a fully developed damages brief is not required: Bent, at paras. 144-145.
162A plaintiff 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 defendant’s expression: Hansman, at para. 67, citing Pointes, at para. 71, and Bent, at para. 154. Presumed general damages and bare assertions of harm are insufficient for this purpose: Hansman, at para. 67.
163There must be evidence that enables a judge to infer a causal link between a defendant’s expression and the harm suffered: Hansman, at para. 68.
164Although Mr. Chan incurred legal fees in connection with the Public Inquiry into Foreign Interference in Canada, he has not claimed these fees as damages in this action as they were incurred after it was commenced. In order to amend his claim to include these fees, Mr. Chan would have had to obtain leave under s.137.1(6) of the CJA. As set out above, at the outset of the hearing of this motion, Mr. Chan abandoned his motion to amend his claim.
165I note that at no time between the release of Justice Hogue’s decision on December 4, 2023 and the service of Mr. Fife’s motion record on July 4, 2025 did Mr. Chan move to amend his claim to include the legal fees he spent on the Public Inquiry.
166In the event that I am wrong and Mr. Chan’s legal fees can be considered evidence of harm, I note that in his written submission to the Public Inquiry, Mr. Chan said that the focus of the inquiry as it related to him concerned the allegations regarding the 2019 election and specifically that he had orchestrated the “ouster” of politician Geng Tan in favour of Han Dong in the 2019 Don Valley North Nomination. These allegations were made only in the article by Mr. Cooper and not in the articles by Mr. Fife.
167Even with respect to Mr. Cooper, it is unlikely that Mr. Chan’s legal fees associated with the Public Inquiry would be compensable. There are significant causation and foreseeability issues. At the time the Articles were published, it was likely not reasonably foreseeable that a Public Inquiry would be called and that Mr. Chan would participate in it, in the hope that it would address his concerns about CSIS leaks.
168Mr. Chan voluntarily applied for and was granted standing at the Public Inquiry. However, the Commission’s view was that its mandate did not include an investigation of the leak issue that Mr. Chan had “hoped it would consider”.
169Mr. Chan says in his affidavit that: “As matters unfolded, no one in the course of the Inquiry’s procedures ever suggested to me that I had in fact in any way been involved in any “ouster” of Geng Tan (as a CSIS leaker had apparently claimed) or that I had been involved at all in the Liberal Party's consideration of approving or not approving his candidacy.” Mr. Chan says that no documents were made available in the Inquiry which in any way suggested this.
170Here Mr. Chan claims general damages for pain, embarrassment, humiliation, stress and reputation. He also claims punitive damages.
171Mr. Chan’s evidence is that the leaks have been hurtful to him and his family and caused them great stress. He was also concerned about the impact on his community.
172Mr. Chan submits that he is entitled to damages at large. He submits that the nature of the leaked information is such that it would be expected to cause stress, pain and anxiety to him and his family.
173Mr. Chan submits that this is not a dressed-up defamation claim because much of what is contained in the Articles is true. He is not suing the Defendants for irresponsible journalism or defamation. He is suing because they participated in actions that led to improper leaking of classified information and are actionable.
174The Defendants argue that even if Mr. Chan has established serious harm, there are significant causation issues.
175Evidence of a causal link between the expression and the harm is especially important where there may be sources other than the defendant’s expression that may have caused the plaintiff harm: Hansman, at para. 68.
176Allegations that Mr. Chan has been under investigation by CSIS regarding his connection with the Chinese consulate in Toronto and briefings regarding him were reported by The Globe and Mail years before the Articles at issue in this action were published. Mr. Chan says that as early as 2010 the director of CSIS was making remarks that cast a shadow over him as one of the only Chinese cabinet minister in the Ontario government. Mr. Chan claims to have been harmed by this previous reporting which suggested that he was disloyal to Canada and a person of interest to CSIS. He commenced defamation actions against the Globe and Mail in 2015 and 2016. In those actions Mr. Chan admits that he claimed the same sort of reputational injury and emotional injury claims that he advances in this action. Those actions never advanced beyond the pleadings stage and were dismissed for delay after nearly a decade of inaction.
177Mr. Chan’s affidavit sets out that when the security leaks started in 2022 they did not initially reference him but when leaks targeting him were published he was hurt and angry. By May of 2023 there had been many months of leaks.
178As set out above, Mr. Chan pleads that Mr. Cooper was publishing articles and making Twitter posts that repeat CSIS allegations and portray him as an agent of the Chinese government and disloyal to Canada from at least 2019.
179On January 23, 2025 Mr. Chan sued Mr. Cooper, the Attorney General of Canda, Optimum Publishing International and unidentified defendants for defamation. In that new action, he claims the same sorts of damages as he does in the present action i.e. damages for pain, embarrassment, humiliation, stress and damage to his reputation, and well as threats to his personal wellbeing and that of his family. He repeats that it has particularly pained him to know that his family members have had to deal with this matter.
180Even considering that Mr. Chan did not know about the search warrants until the Articles were published and that knowledge caused him some harm, it seems obvious that some of the harm that Mr. Chan has suffered was not a result of the Defendants’ expression in the Articles but rather harm that was caused by other previous or subsequent media reports. Any damages that Mr. Chan sustained as a result of the articles published at other times would not be compensable in this action.
181Some of the harm Mr. Chan suffered, and certainly the legal fees incurred, arose from Mr. Chan’s willing participation in the Public Inquiry into Foreign Interference in Canada.
182Mr. Chan’s affidavit sets out eight messages he received between February 28, 2023 and April 4, 2024 that he felt were threatening and/or disturbing. The harm caused by these specific messages must be assessed in context. On cross-examination Mr. Chan agreed that it is a regular part of public life to receive hurtful, racist or ignorant messages at times. This mitigates the harm attributable to these eight specific messages that Mr. Chan attributes to the Articles.
183There is no evidence that Mr. Chan has suffered professionally as a result of the Articles. The Articles have not prevented Mr. Chan from continuing in his elected position. He remains the deputy Mayor of Markham, a position he has held since October, 2022. He has also maintained many of his prominent supporters in the community.
184Mr. Chan has not decided if he will run again when his current term ends in 2026. The factors he will consider in making that decision include his age, whether it is something that he would like to continue to do and “things like that”. Mr. Chan does not say that the Articles or their impact will play a role in the decision.
185There is no evidence that if there was any damage to Mr. Chan’s reputation, the damage was caused by the Article and not from other sources.
Public Interest in Protecting the Expression
186The Plaintiff submits that the expression here is less worthy of protection because it is based on CSIS information leaked in violation of the SOIA. Even assuming that is true, which I am not convinced it is, in the circumstances of this case, Mr. Chan has not satisfied me that the harm to him is sufficiently serious that the public interest in allowing his action to proceed outweighs the public interest in protecting the Defendants’ expression for all the reasons set out in paragraphs 165 to 187 above. I am not saying that leaking classified information is not unlawful or har-mful and the Plaintiff’s action against the Crown may continue. However, on this motion I am weighing the harm to the plaintiff against the expression. I am not weighing the expression against the rule of law, national security or the risks of terrorism and espionage as the Plaintiff suggests.
187In conducting the Public Interest analysis under s.137.1(4)(b), the court may consider “…broader or collateral effects on other expressions on matters of public interest, the potential chilling effect on future expression either by a party or by others, the defendant’s history of activism or advocacy in the public interest…”: Pointes, para. 80.
188The weighing exercise can be informed by jurisprudence related to s. 2(b) of the Canadian Charter of Rights and Freedoms “which grounds the level of protection afforded to expression in the nature of expression”: Pointes para. 77, citing R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 181; Hansman, at para. 79 The closer the expression in issue is to the core Charter values of truth-searching and participation in political decision making, the greater the public interest in protecting it: Pointes, para. 77; Hansman, at para. 79
189Speech commenting on the fitness of an electoral candidate is political expression, which is “the single most important and protected type of expression”: Hansman, at para. 91, citing Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827, at para. 11, per McLachlin C.J. and Major J., dissenting in part, but not on this point.
190Mr. Fife and Mr. Cooper have a long history as political journalists.
191Mr. Fife is based in Ottawa and has covered Parliament Hill and federal politics since 1978. He served as a senior political reporter at the Canadian Press in the 1980s, and then as the Ottawa bureau chief for several media outlets, including Sun Media, the National Post, CanWest News Services, and CTV News. Since 2016, he has been the Ottawa Bureau Chief for The Globe and Mail.
192Mr. Fife has broken and covered numerous stories of significant public interest about the federal government and federal politics, including the Canadian Senate expenses scandal, the Canadian government’s $10.5 million settlement with Omar Khadr, and the SNC-Lavalin Affair.
193Mr. Fife has also received many prestigious awards for his investigative journalism.
194Mr. Cooper is an experienced and award-winning investigative journalist and best-selling author. Mr. Cooper has been working as a journalist, initially in British Columbia, and now in Ontario, since 2007.
195While he was at the Vancouver Province, Mr. Cooper’s investigation exposing elder abuse in a North Vancouver senior care home was recognized as a key contribution to The Vancouver Province’s 2012 National Newspaper Award first prize series on issues regarding aging in B.C.
196Mr. Cooper has spent years researching and reporting on foreign interference, national security and intelligence and Canada-China relations and tensions. He has presented the results of his investigations to Canadian law enforcement agencies, officials in the Pentagon, and others.
197While Mr. Cooper was at Global News he practiced investigative journalism focusing on anti-corruption including foreign interference and Chinese-Canadian relations.
198Mr. Cooper currently operates “The Bureau” which is a news website and podcast he founded in June 2023. The Bureau provides the public with news and investigative journalism with a focus on anti-corruption.
199There is a strong public interest in protecting the Defendants’ expression regarding foreign interference which includes information obtained from confidential sources.
200“The role of investigative journalism has expanded over the years to help fill what has been described as a democratic deficit in the transparency and accountability of our public institutions”: R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477, at para. 55.
201The media contributes to the existence and maintenance of a free and democratic society by investigating, questioning, criticizing and publishing important information: Denis v. Côté, 2019 SCC 44, [2019] 3 S.C.R. 482, at para. 45.
202In the context of the Public Interest Hurdle, a candidate’s suitability for elected office is a topic of great importance to the public: Able Translations v. Express International, 2018 ONCA 690, 428 D.L.R. (4th) 568, at para. 42.
203The issue of foreign interference in Canada’s elections and political affairs is extremely important to Canada’s sovereignty and democratic process.
204In this case, the publication of the Articles, together with other similar foreign interference reporting led to the Public Inquiry into Foreign Interference in Canada at which the head of CSIS and the Prime Minister testified.
205CSIS’s allegation that Mr. Chan was involved in foreign interference is of immense interest to the public. Mr. Cooper had four separate sources identifying Mr. Chan. Mr. Fife also had four sources.
206Confidential sources play a crucial role in investigative journalism. Confidential sources represent a tool of critical importance to the media in bringing stories of public interest to light. “[W]ithout whistleblowers and other anonymous sources, it would be very difficult for journalists to perform their important mission”, and “many important controversies have been unearthed only with the help of sources who would not agree to speak other than on the condition of confidentiality”: Denis, at para. 47, citing National Post, at para.28. The information from the confidential sources was an important part of the investigative process and an aspect of the expression in this case. “Mobilizing a journalist against his or her source is incompatible with freedom of the press”: Denis, at para 47.
207Mr. Chan submits that protection of the press is significantly lessened where the press seeks to conceal information it has acquired on crimes, particularly where the press has encouraged and been instrumental to a crime occurring. Mr. Chan submits that there may well be a symbiotic “you scratch my back and I’ll scratch yours” relationship between some members of the press and a cross-section of CSIS officers: CSIS officers plant classified information about individual Canadians with the press and the information is publicly released. Mr. Chan submits that because the journalists are receiving illegally leaked information, their expressions are less worthy of protection.
208In 1654776 Ontario v. Stewart and The Globe and Mail, Justice Belobaba considered the public interest in protecting confidential sources in the context of a Norwich application. He said: “It is important to remember that in most cases the confidential source will be breaking a law or some other legal obligation by disclosing the information to the journalist….The law accepts that “in some situations the public interest in protecting the secret source from disclosure outweighs other competing public interests - including criminal investigations”: 2012 ONSC 1991, at para. 38.
209The use of confidential sources supports freedom of expression and the maintenance of a robust democracy. Important matters may only see the light of day through the cooperation of confidential sources. Many important controversies are unearthed only because of confidential sources. Without confidentiality agreements between reporters and sources, “the real news simply dries up, and the whole truth steadily recedes behind a wall of image-mongering, denial and even outright lies”: National Post, paras. 28-29 citing Editorial, “Shielding a Basic Freedom”, The New York Times, September 12, 2005, at p. A20.
210If Mr. Chan’s action is permitted to continue, there may be a chilling effect on other whistleblowers and confidential sources. Also, there may be a chilling effect on the media. The media might be less inclined to report on important matters of public interest out of fear of lawsuits, forced disclosure of the identities of journalists’ confidential sources, or the use of journalists as a means to pursue claims against their confidential sources.
211Mr. Chan’s lawsuit is what the Supreme Court has recognized as a SLAPP lawsuit: a tactical action that seeks to suppress expression on matters of public interest: Hansman, para. 46. The four hallmarks of a SLAPP suit include evidence of a history of attempts to silence critics, financial power imbalance, a punitive purpose, and minimal damages suffered: Platnick v. Bent, 2018 ONCA 687, 426 D.L.R. (4th) 60, at para. 99, aff’d 2020 SCC 23.
212In this case Mr. Chan has a history of bringing lawsuits against journalists. He has commenced at least three others.
213There is no suggestion of a financial power imbalance or punitive purpose. However, SLAPPs do not always have to be initiated by the rich and powerful, rather, the “consistent defining feature of a SLAPP is that the proceeding acts to silence the defendant, and more broadly, to suppress debate on matters of public interest, rather than to remedy serious harm suffered by the plaintiff.”: Hansman, at para. 48.
214The claim against the Defendants is not a genuine attempt to seek redress against them for damage to Mr. Chan’s reputation. Mr. Chan does not seriously challenge the veracity of the information reported in the Articles by Mr. Fife. Mr. Chan publicly acknowledged that he had been the subject of CSIS surveillance for many years, was the subject of the CSIS Warrant, and did in fact meet with certain individuals with whom he was alleged to have met, including Chinese diplomat Zhao Wei.
215The reality of the present case is that Mr. Chan is suing the Defendants so that he can obtain the identities of the confidential sources and pursue them for breaching the SOIA.
216Mr. Chan has not shown that the harm suffered by him because of the Defendants’ expression in the Articles is sufficiently serious that the public interest in permitting this action to continue outweighs the public interest in protecting the journalists’ expression.
217Mr. Chan has not established that he suffered serious emotional harm or harm to his reputation, or alternatively that any such harm flows from the Articles as opposed to other earlier reports. There is evidence that Mr. Chan’s reputation has not suffered. He is still the deputy Mayor and he still has many supporters.
218On the other hand, there is a very strong public interest in protecting the expressions of journalists based on information from confidential sources, particularly on matters relating to foreign interference, the role of elected officials and the Canadian government’s response to same.
219I conclude that the harm to Mr. Chan as a result of the Defendants’ expressions does not outweigh the public interest in protecting those expressions.
COSTS
220The Defendants are presumptively entitled to their costs of the action. Section 137.1(7) of the CJA provides that if a proceeding is dismissed under this section, the moving party is entitled to costs of the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances.
221I encourage the parties to agree on costs. If they cannot agree, I will consider brief written submissions. These costs submissions shall not exceed five pages in length, (not including any bill of costs or offers to settle). The Defendants shall deliver their written submissions within fifteen days of the date of these reasons. The Plaintiff’s responding submissions shall be delivered within ten days of receipt of the Defendants’ costs submissions. Any reply submissions shall be delivered within five days of receipt of responding submissions and shall be no more than three pages long. Costs submissions shall be served, filed with the court and delivered to me by way of email to my Judicial Assistant.
Merritt J.
Date: March 11, 2026