ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Susan Manery
Plaintiff/Defendant by Counterclaim
– and –
1000090187 ONTARIO INC. and AMCOT STUCCO DESIGN INC.
Defendants/Plaintiff by Counterclaim
Shaneka Shaw Taylor, for the Plaintiff, Defendant by Counterclaim
Sara Erskine, for the Defendants, Plaintiff by Counterclaim
HEARD: October 20-23, 2025, written submission on November 28, 2025
Jensen j.
Introduction
1This case involves an interesting question about the extent to which a private investor may make posts on social media about loan defaults and related actions by the borrower. The plaintiff (defendant by counterclaim), Susan Manery (Ms. Manery), loaned money to the defendant, 1000090187 Ontario Inc. (187 Ont. Inc. or the defendant) to purchase and renovate a property located at 147 Deschamps Avenue, Ottawa (the Property or 147 Deschamps). The loans, which originally matured on February 14, 2024 (and were extended by Ms. Manery to March 31, 2024) (the Loans) remain unpaid. Ms. Manery seeks an equitable mortgage on 147 Deschamps to secure repayment of the Loans, the principal of which totals $400,000.
2The plaintiff by counterclaim, 187 Ont. Inc. maintains that Ms. Manery defamed 187 and its principals, Julie and Michael Conrad and Sylvie and Andre Lalancette, and that the damages for defamation should be set off against any amounts owing to Ms. Manery. 187 Ont. Inc. also claims that Ms. Manery intentionally interfered with its economic interests.
3187 Ont. Inc. paid off the lien registered against 147 Deschamps by the defendant Amcot Stucco Design Inc. (Amcot). Amcot was noted in default in the present proceedings. In this decision any reference to the defendant is to 187 Ont. Inc.
4Ms. Manery seeks a declaration that an equitable mortgage in her favour ranks ahead of Amcot and First Source Mortgages Inc. (First Source). First Source granted 187 Ont. Inc. a mortgage on December 20, 2024.
5For the reasons that follow, I find that Ms. Manery did not defame 187 Ont. Inc. and did not intentionally interfere with 187 Ont. Inc.’s economic interests. The principal, interest and costs owing on the Loans are due immediately. An equitable mortgage is granted and must be registered on the Property, with an effective date of March 15, 2024. Ms. Manery’s equitable mortgage ranks ahead of the First Source mortgage.
Factual Background
6Based on all the evidence that was presented at trial and on a balance of probabilities, I make the following findings of fact.
The Parties
7The plaintiff (defendant by counterclaim), Ms. Manery, is a bookkeeper and a real estate investor based in Ottawa.
8The defendant (plaintiff by counterclaim), 187 Ont. Inc., was incorporated on January 21, 2022, by Sylvie Lalancette (Ms. Lalancette). Julie Conrad (Ms. Conrad) is a director, managing partner and the Treasurer of 187 Ont. Inc. In this decision, Ms. Lalancette and Ms. Conrad are referred to as the Borrowers.
The Properties
9187 Ont. Inc. purchased 147 Deschamps on March 2, 2022, for $1,800,000. The Property is a multi-family residential building.
10187 Ont. Inc.’s affiliate company, 2799256 Ontario Inc. (256 Ont. Inc.) purchased the building next door to 147 Deschamps at 143 Deschamps Avenue. The two properties are essentially identical and are known as “the Twins”.
11The management team at 187 Ont. Inc. and 256 Ont. Inc. made initial investments to acquire the buildings and secured mortgage financing. 187 Ont. Inc. secured phase 1 construction financing from individual lenders through loan agreements.
12The plan was that when the renovations were complete and the value of the buildings had appreciated, 187 Ont. Inc. and 256 Ont. Inc. would refinance the properties with a Canada Mortgage and Housing Corporation (CMHC) approved mortgage with lower lending rates and an amortization of 50 years. They would then lease out the units to generate revenue.
The Loan Agreements
13Ms. Manery entered into a loan agreement with 187 Ont. Inc. on January 25, 2022 (the First Agreement).
14Pursuant to the First Agreement, Ms. Manery loaned 187 Ont. Inc. $200,000 at an interest rate of 14% per annum, with monthly interest payments due on the 15th of each month and full repayment due by February 14, 2024.
15On June 10, 2022, Ms. Manery and 187 Ont. Inc. entered into a second loan agreement for an additional $200,000 (the Second Agreement), on similar terms as the First Agreement (collectively referred to as the Loans).
16The Second Agreement was amended on May 11, 2023, extending the repayment deadline to February 14, 2024, to align with the maturity date of the First Agreement.
Events Leading up to the Default on the Loans
17187 Ont. Inc. made monthly interest payments of $2,333.33 under each of the First and Second Agreements from April 15, 2022, to February 15, 2024.
18The repayment deadline under the Loan Agreements was February 14, 2024. However, due to the delays in the timelines for completing the renovations and the increased carrying costs of the projects, it became apparent in early January 2024 that 187 Ont. Inc. would not be able to make the payment deadline of February 14, 2024.
19Therefore, on January 13, 2024, Ms. Conrad and Ms. Lalancette emailed Ms. Manery. The subject line of the email was “Your investment in 147 Deschamps - We are so close to the finish line but still need your support”. Part of this email read:
With your permission, we will action the loan extension as per our agreement and send your way for signature. We appreciate your patience and understanding as we navigate these final steps to completion.
20The defendant takes the position that on January 13, 2024, they exercised their unilateral right to extend the loan agreement to July 14, 2024, pursuant to Clause 4 of the Loan Agreements.
21Clause 4 of the Loan Agreements reads as follows:
Provided the loan is in good standing and with at least one month’s written notice, the term of the loan may be extended up to twice by six additional months at the request of the Borrower for a total of twelve months.
22Ms. Manery takes the position that Clause 4 required her permission to extend the term of the loan.
23On January 14, 2024, Ms. Manery responded that she was open to an extension of the Agreements until mid-July 2024, subject to legal review of the proposed amended agreement. She received no reply from 187 Ont. Inc. and followed up on February 6, 2024, again requesting draft documentation for legal review. She indicated in that email that if she did not receive the documents, she would expect to be repaid the Loan money by February 14, 2024.
24On February 12, 2024, Ms. Manery advised 187 Ont. Inc. that she would only consider an extension if the Loans were secured by collateral or backed by personal guarantees. Failing that, she expected repayment by February 14, 2024, as originally agreed.
25On February 13, 2024, 187 Ont. Inc. requested a one-month extension while they consulted legal counsel on how to meet the security requested by Ms. Manery. In response, Ms. Manery agreed to a good faith extension to March 15, 2024.
26During this time, Ms. Manery was undergoing intensive treatment for a medical condition. As a result, her husband, Robert Timlin, participated in some of the meetings and transmitted some of Ms. Manery’s communications to Ms. Conrad and Ms. Lalancette. There was some discussion during the trial about whether Mr. Timlin’s actions and communications were validly based on a power of attorney to act for Ms. Manery. However, this objection was not pursued with any vigor at trial. Ms. Lalancette gave evidence that at no point did the borrowers indicate that they did not accept Mr. Timlin’s provision of notice as valid. Ms. Lalancette admitted in cross-examination that Mr. Timlin was acting on Ms. Manery’s behalf, given that she was copied on all correspondence.
27I find that Mr. Timlin’s actions on behalf of Ms. Manery were valid expressions of Ms. Manery’s decisions and directions. It was not necessary for the power of attorney to have been activated.
28On February 18, 2024, Mr. Timlin participated in a meeting with Ms. Manery, Ms. Conrad and Ms. Lalancette. He testified that he recorded the meeting because he has significant hearing loss and the recording helps him to review what was said during the meeting. Mr. Timlin testified that he did not tell anyone that he was recording the meeting because it was only for his personal use. The transcript of the recording was entered into evidence during the trial.
29During the February 18, 2024 meeting, the parties discussed returning Ms. Manery’s funds within sixty days. Ms. Conrad proposed several ways of paying Ms. Manery back. Ms. Lalancette acknowledged that Ms. Manery had provided the sixty days notice required to trigger the return of her funds. She stated:
… and you’ve already told us you need your funds. So the 60 days in our loan agreement kicks in. So we are looking like, I mean, in that context, even if you did extend to July, we’re looking to fund you out as soon as you know, 60 days, and that’s what we’re going to do.
30During the trial Ms. Lalancette confirmed her statement above that they had received verbal notice that Ms. Manery wanted her $400,000 back. In examinations, Ms. Conrad admitted that at no time was Ms. Manery advised that her verbal notice was not sufficient.
31On March 8, 2024, Ms. Conrad sent an email to Mr. Timlin stating that because the value of 147 Deschamps had increased, the borrowers thought they would be in a position to remortgage the property and obtain $2.5 million. Ms. Conrad proposed that Ms. Manery reinvest $200,000 of the $400,000 that was owed to her in the new mortgage, which would be secured by 147 Deschamps. The other $200,000 would be paid once a new investor could be found.
32On March 14, 2024, Mr. Timlin rejected this proposal on Ms. Manery’s behalf. In an email to the Borrowers, he provided written notice that if they could not provide personal guarantees for the Loans, then the $400,000 must be paid back by March 31, 2024.
The Interest Default
33On March 15, 2024, 187 Ont. Inc. advised Ms. Manery that it would no longer pay interest on the Agreements due to its ongoing financial difficulties. No interest payments on the Loans have been made to Ms. Manery since that date.
34The Loans were therefore, in default as of March 15, 2024, because the monthly payment of interest was a requirement under the Loan Agreements.
The Negotiations for Repayment of the Loans
35On March 17, 2024, Ms. Manery and Mr. Timlin met with Ms. Conrad and Ms. Lalancette to discuss 187 Ont. Inc.’s communication that interest payments would not be made and to discuss the repayment of Ms. Manery’s loans. Mr. Timlin audio-recorded the meeting. Ms. Lalancette stated during that meeting that she was hopeful that in about a month to a month and a half the new syndicated mortgage would be in place, and they could pay Ms. Manery back.
36Ms. Manery told Ms. Conrad and Ms. Lalancette that she needed her $400,000 to be repaid because she was beginning her own real estate project and needed the funds. Ms. Conrad and Ms. Lalancette told Ms. Manery that they would pay the money back either by finding an investor to replace her or from a refinanced syndicated mortgage. Regardless of whether the loan was extended to July 2024, the borrowers acknowledged that Ms. Manery needed her money back before that date to pay for her own project.
37Ms. Lalancette acknowledged in cross-examination that between January and July of 2024 they were having difficulty finding investors because of high profile defaults that had occurred. Ms. Lalancette agreed in cross-examination that there was information about these defaults circulating on social media and in the newspapers.
38On March 25, 2024, Mr. Timlin attended a meeting with Ms. Conrad and Ms. Lalancette. Mr. Timlin attended the meeting in Ms. Manery’s place because Ms. Manery was not feeling well. During this meeting, Ms. Conrad informed Mr. Timlin, that 187 Ont. Inc. had a $2.5 million syndicated mortgage that was expected to close soon and that their legal counsel had advised it would be “simpler if we just paid you out.” She repeated that they “want to make this right” and confirmed that Ms. Manery’s investment would be fully repaid from the mortgage proceeds. Ms. Lalancette echoed these commitments and acknowledged that interest would continue to accrue and be paid on the outstanding balance.
39Ms. Lalancette testified that the $2.5 million Syndicated Mortgage did not close because of rule changes for take-out mortgages by the CMHC. This had nothing to do with Ms. Manery.
40On April 12, 2024, the Borrowers rejected Ms. Manery’s request for security for the loan extension. They also disagreed with Ms. Manery that pursuant to Clause 7 of the Loan Agreements, she was entitled to place a charge on the Property, given that the loans were in default. They asked Ms. Manery to consider the impact of placing a charge on the Property on the Borrowers’ ability to return her funds and those of all the investors.
41Clause 7 of the Loan Agreements provides as follows:
In the event the debt is in default, the Borrower hereby consents to the Lender registering a charge against the following property known as 147 Deschamps Ave., Ottawa, ON KIL 525 for the amount of the debt plus interest incurred.
The RRSP Loan to the Syndicated Mortgage for 143 Deschamps
42In addition to the $400,000 Ms. Manery loaned to 187 Ont. Inc., she also contributed $179,700 to a syndicated mortgage from her RRSP funds to 143 Deschamps (the RRSP Loan) which was secured against Ms. Lalancette’s personal residence at 1161 Du Governeur Drive in Ottawa. The RRSP Loan was part of a syndicated mortgage (the Syndicated Mortgage) that was administered by Align Mortgage.
43In March 2024, the Borrowers believed that Ms. Manery was prepared to renew her RRSP Loan for up to one year because in her communications with them, Ms. Manery stated that she would leave her RRSP money in the Syndicated Mortgage for the time being.
44However, the evidence reveals that by April 2024, Ms. Manery had lost faith in the defendant. In an email dated April 4, 2024, Mr. Timlin notified the Borrowers that if resolution could not be reached on the repayment of the Loans, then Ms. Manery would be proceeding with legal action which would include repayment of the RRSP Loan, which was due and owing as of April 1, 2024. In examinations, Ms. Lalancette acknowledged that Mr. Timlin had requested the return of the RRSP Loan in an email dated April 4, 2024, but she stated that she did not see that correspondence.
45On May 6, 2024, Ms. Manery advised Align that she did not wish to renew her investment in the Syndicated Mortgage. Muriel Debroy of Align Mortgage advised Ms. Manery that the Syndicated Mortgage renewal date was April 1, 2024, that it had not been repaid and therefore, it was in default. Ms. Debroy stated that she would notify Align’s staff of the default and that she would be notifying the other mortgage investors as well.
46There was a miscommunication of information by Ms. Debroy to the other investors in the Syndicated Mortgage. The message to other investors was that one of the investors had asked for the return of her money early in 2024 and that the investor had commenced private litigation against the Borrowers. These two assertions were incorrect. Ms. Manery sent an email on May 7, 2024, to Chad Robinson, the President of Align, in which she corrected the information and expressed her concern about how the information was conveyed to the other investors.
47Mr. Robinson testified that he had a meeting with the other investors in the Syndicated Mortgage and he also sent out an email correcting the information in Ms. Debroy’s email. In his email correcting the information, he stated that he used the words “no litigation has been commenced yet” because he was aware that lawyers had been retained. Mr. Robinson testified that the investors were made aware that there was no litigation arising from the Syndicated Mortgage.
48When Align informed Ms. Lalancette that one of the Syndicated Mortgage investors did not wish to renew their investment, Ms. Lalancette responded that she knew who that person was and that the nonrenewal was retaliatory. Ms. Lalancette alleged that Ms. Manery had sabotaged the Syndicated Mortgage by spreading misinformation to the other investors and by threatening not to renew her investment in the Syndicated Mortgage, contrary to assurances that she had provided to Ms. Conrad and Ms. Lalancette in other correspondence.
49Ms. Lalancette was upset by this development and thought that a whole new mortgage would be required. Mr. Robinson corrected her, stating that new documentation would have to be done and the mortgage reregistered, but that it was not a new mortgage. He assured Ms. Lalancette that it was not “a big deal” but that a process had to be followed.
50The evidence demonstrates that once Align was notified in May 2024 that Ms. Manery was not renewing her investment in the Syndicated Mortgage, Align was required to inform the other investors that a co-investor was seeking repayment. It was then required to issue a demand letter and begin the process for preparing and disclosing new documentation for the Syndicated Mortgage. Mr. Robinson gave evidence that new investors coming into the mortgage needed full transparency regarding the financial status of the loan and the existing obligations. This process did not constitute retaliatory action taken by Ms. Manery against the defendant.
51Ms. Conrad admitted in examinations that even if Ms. Manery had demanded repayment of her RRSP Loan to the Syndicated Mortgage, this would have had nothing to do with 187 Ont. Inc.’s obligation to repay the funds owing to her under the Loan Agreements. The requirement to refinance the Syndicated Mortgage should only have affected the other numbered company, 256 Ontario Inc., and not 187 Ont. Inc. because the Syndicated Mortgage was for 143 Deschamps and secured by 116 Du Gouverneur.
52Ms. Lalancette testified that in the end, the Borrowers were able to replace the investors who backed out of the Syndicated Mortgage with replacement investors who provided more funds than the investors who backed out. As a result, there was no loss of money in the Syndicated Mortgage arising from Ms. Manery’s demand to have her loan repaid.
Ms. Manery Begins Legal Action
53Despite ongoing discussions and promises to repay once a new mortgage on the Property closed in April 2024, 187 Ont. Inc. did not return any of Ms. Manery’s funds. Therefore, on April 18, 2024, Ms. Manery’s counsel delivered a formal demand for repayment, which remains outstanding.
54Ms. Manery commenced the present action on May 21, 2024.
55On July 2, 2024, counsel for Ms. Manery, Ms. Shaw Taylor, contacted counsel for the defendant stating the following:
…It is our understanding that a new RRSP syndicated mortgage will be replacing the currently defaulted RRSP mortgage (of which our client is apart of the lender group). This new mortgage and is scheduled (sic) to close on Thursday, July 4, 2024. I am told that the power of sale process currently in play has been driven by the broker to date.
As your client can appreciate, our client is becoming increasingly frustrated with the lack of progress from your client with respect to repaying her. Her frustration had led to her considering circulating online a copy of the Statement of Claim. This of course, will not inspire confidence in potential investors. I am hopeful that satisfying her outstanding loan from this refinance would avoid her doing so but that of course, will depend entirely on what your client intends to do with the proceeds of the upcoming refinance.
Can you kindly confirm that our client’s loan ($400,000 plus interest and legal fees) which is also in default and the subject of the claim will be paid out of this refinance on Thursday?
Please get back to me by the end of day tomorrow (Wednesday, July 3) with the above information.
56Ms. Conrad gave evidence that there were not sufficient funds in the potential Syndicated Mortgage to pay Ms. Manery $400,000 plus interest and legal fees. Consequently, they did not make any payments to Ms. Manery.
The Facebook Post
57On July 3, 2024, at 8 p.m., Ms. Manery made the following post, to which she attached the Statement of Claim in the present action:
I am posting a publicly available Statement of Claim. I lent Sylvie Lalancette and Andre Lalancette and Julie Conrad Lebrun and Michael Conrad $400,000 for 147 Deschamps in Vanier. The loans and interest payments are in default. They have not honoured their loan agreement and their subsequent verbal agreements to return my money. They have not included me in investor correspondence.
I am posting this because I was also defaulted on by Collard Properties Inc. and if I (and many others) had been given this type of heads up, it would have saved many people's hard earned money. Fyi, their lawyers were made aware that I was posting this today.
58Ms. Conrad’s evidence was that as a result of the Facebook Post, four investors who were lending funds under the Syndicated Mortgage backed out of the transaction on the day of signing. She also testified that it was difficult for 187 to secure private lenders after Ms. Manery’s Post.
59After the Post, Ms. Erskine, counsel for the defendant, wrote Ms. Shaw Taylor, saying:
I also write in respect to your email below concerning the closing of the RRSP syndicated mortgage that was scheduled today. Your email demands that your client be paid out of this refinancing or she would circulate her Statement of Claim online with the intention of undermining my client’s reputation with potential investors.
I have been advised by my client that as a result of your client’s posting on Facebook, that the RRSP syndicated mortgage will not be closing and the lenders have backed out. My client is considering its legal remedies against your client.
60At that time, a contractor of 187 Ont. Inc., Amcot, had registered a construction lien registered against title to the Property. To preserve her prior interest, Ms. Manery requested a declaration that payment of her funds had priority over that lien. 187 Ont. Inc. has since paid Amcot the monies required to clear the lien. However, 187 Ont. Inc. refused to register Ms. Manery’s charge against the Property.
61After the commencement of this claim, 187 Ont. Inc. refinanced the Property on December 20, 2024 in favour of First Source Financial Management Inc. for $3,651,390.
Issues
62The issues to be resolves in the Claim are as follows:
I. When did the Loan Agreements mature?
II. When did interest begin to accrue on the loans?
III. Is Ms. Manery entitled to an equitable mortgage?
63The issues to be resolved in the Counterclaim are as follows:
IV. Was Ms. Manery’s Facebook Post defamatory toward 187 Ont. Inc.?
V. Did Ms. Manery unlawfully interfere with 187 Ont. Inc.’s economic relations?
VI. If either defamation or unlawful interference with economic relations are made out, what are the resulting damages, and should they be set off against the repayment of the loans?
Analysis
I. When did the Loan Agreements Mature?
64187 Ont. Inc. argues that Clause 4 of the Loan Agreements clearly and unambiguously stipulates that it had the right to unilaterally extend the term of the Loan Agreements for a period of six months provided the loans were in good standing and one months’ written notice was provided.
65187 Ont. Inc. argues that on January 13, 2024, it exercised the option under Clause 4 to extend the Loan Agreements. Therefore, whether Ms. Manery agreed to the extension or not, the term of the Loans was extended to July 14, 2024. It was on that date that the Loans became due and owing, according to 187 Ont. Inc., and interest runs from that date.
66Ms. Manery argues that Clause 4 is ambiguous on its face because there are reasonable competing meanings that could be attributed to it. While it could mean that the Borrowers have the right to an extension provided the loan is in good standing and they give written notice, she contends that the use of the word “may” in Clause 4 indicates that the option to extend the Agreement is discretionary, not automatic. It does not say that upon the conditions being met, the lender must or shall extend the contract. There is no language creating an automatic or unilateral right of renewal upon fulfilment of the pre-conditions.
67Furthermore, according to Ms. Manery, 187 Ont. Inc.’s own post-contract conduct confirms this understanding. On January 13, 2024, 187 Ont. Inc. emailed Ms. Manery requesting “permission” to extend the loan and stating that it would “send [documents] your way for signature.” This language explicitly acknowledges that any extension required Ms. Manery’s consent and a signed amendment.
68In response, the defendant argues that the ordinary grammatical meaning of the words of Clause 4 makes it clear that the clause is not ambiguous. It provides 187 Ont. Inc. with the option to extend the term of the Loan Agreements at the request of 187 Ont. Inc. The defendant further argues that contrary to Ms. Manery’s submissions, the use of the word “may” does not make the provision ambiguous. Nor does it make the option “permissive” requiring Ms. Manery as lender to give her permission to the extension.
69The defendant argues that their interpretation of Clause 4 is consistent with the law of options in Canada. They cite Jones v. Quinn, 2024 ONCA 315 in which the Court of Appeal held that:
[a]n option is generally understood in Canadian contract law to be an irrevocable offer. The party making the offer is the optionor. The person obtaining the offer is the optionee or option holder. The optionee can invoke the option, according to its specifications, at which point a new contract forms between the parties. The rights and obligations of the parties to this new, bilateral contract are determined by the terms of the option.
70Jones v. Quinn dealt with a real estate transaction, where options frequently are found. Not only is the context of that case quite different from the present case, but the wording of the clause is also very different. In Jones, the buyback option read as follows:
Within eight years of the date of purchase, Linda Jones may purchase the property back from Elwood Quinn for what he paid her for it ($300,000) plus a 5% compounded [delete compound replace with “annual”] interest on $300,000, plus the accumulated deferred rent of $500 per month. [Emphasis added.]
71In the present case, Clause 4 states that, provided the conditions are met, “the term of the loan may be extended up to twice by six additional months at the request of the Borrower for a total of twelve months.
72The use of the word “request” in Clause 4 renders the clause unambiguously permissive. It goes without saying that a request may be denied. The Borrowers may request an extension of the term, but the Lenders may deny that request. If the Lender’s permission was not required, the clause would have read “[p]rovided the loan is in good standing and one months’ written notice has been provided, the Borrower may extend the term of the loan up to twice by six additional months.” This is how the buyback option in Jones was worded. Or the clause could have read: “provided the loan is in good standing and the Borrower has provided one months’ written notice, the Borrower may unilaterally extend the term of the loan up to twice by six additional months”.
73These two examples above clearly provide the Borrower with an unambiguous right to unilaterally extend the term of the loan. The present wording of Clause 4 does not do so. It unambiguously permits the Borrower to request an extension, which request could be denied.
74Reading the Loan Agreements in their entirety also leads to the same result. Clause 3 of the Loan Agreements states “full repayment of loan and interest earned to date can be made at any time on or before the final due date without penalty at the Borrower’s sole discretion”. The parties could have used the term “at the Borrower’s sole discretion” in Clause 4 if they had meant the option to extend to be in the Borrower’s sole discretion. That was clearly a term that was intentionally used in other parts of the Loan Agreements, but not in Clause 4.
75Although I find that a reading of the Loan Agreements as a whole, giving the words their ordinary and grammatical meaning, renders it obvious that Clause 4 is unambiguously permissive, I acknowledge that both parties have provided plausible alternative interpretations of the clause.
76The case law instructs that when there are two reasonable alternative interpretations of a provision, additional evidence of subsequent conduct may be both admitted and taken to have legal relevance if that additional evidence will help to determine which of the two reasonable alternative interpretations is the correct one: Re Canadian National Railways and Canadian Pacific Ltd. (1978), 95 D.L.R. (3d) 242, (B.C.C.A.) at para. 82, aff’d, 1979 229 (SCC), [1979] 2 S.C.R. 668.
77However, there are risks to admitting evidence of subsequent conduct because, for example, the parties may deliberately conduct themselves in a manner consistent with their preferred interpretation of the contract: Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 326, 162 O.R. (3d) 200, at paras. 19-20.
78Given the risks that subsequent conduct evidence poses, the Court of Appeal in Prism stated at para. 20, that the court should carefully consider what weight to assign to it. Evidence of subsequent conduct will be more reliable if the acts are done by both parties, are intentional, are consistent over time, and are acts of individuals rather than agents of corporations. The evidence of subsequent conduct may also be given greater weight if it is unequivocal in the sense of being consistent with only one of the two alternative interpretations of the contract and if it is closer in time to the contract’s execution.
79In the present case, I find the evidence of the parties’ subsequent conduct to be consistent with Ms. Manery’s interpretation of Clause 4. Both parties acted as though Ms. Manery’s permission was needed. The principals of 187 Ont. Inc., Ms. Conrad and Ms. Lalancette, sent an email requesting Ms. Manery’s permission to extend the term of the Loan Agreements. They met with her and her husband and negotiated over the length of the extension of the Loan Agreements. Neither Ms. Conrad nor Ms. Lalancette ever asserted that they had the right to extend the Loan Agreements to July and therefore, would not engage in any discussion about alternative dates. I find this to be reliable evidence that confirms that Clause 4 required Ms. Manery’s permission to extend the term of the Loan Agreements.
80187 Ont. Inc. argues that Ms. Manery breached the Loan Agreements by failing to act in good faith in the execution of the Loan Agreements when she demanded personal guarantees or other security to extend the Loan Agreements, none of which were part of the Loan Agreements.
81The defendant argues that Ms. Manery’s attempts to execute new terms, including personal security from the principals of 187 Ont. Inc., as a condition of an extension was a breach of the Loan Agreements. In cross-examination, Ms. Manery conceded that the Loan Agreements did not contain anything with respect to personal guarantees and these were new terms of the Loan Agreements she was seeking.
82In Royal Bank of Canada v. Peace Bridge Duty Free Inc., 2025 ONCA 54, 175 O.R. (3d) 371, (Peace Bridge Duty Free), the Court of Appeal for Ontario stated that “good faith performance does not require that contracting parties serve each other’s interests”: at para. 59. In examining whether a party has breached its duty to exercise contractual discretionary power in good faith, the court must determine whether the party exercised its discretion for an improper purpose, that is, one unconnected to the purpose for which the contract granted the discretion; if so, the party has not exercised the power in good faith: Peace Bridge Duty Free, at para. 61.
83I find there is no evidence that Ms. Manery evaded her obligations, frustrated 187 Ont. Inc.’s rights, or acted for an improper purpose. She responded to 187 Ont. Inc.’s request for an extension of the Loans’ term, engaged in constructive dialogue, and negotiated the extension in good faith. This is no different from the requests made by 187 Ont. Inc. of Ms. Manery (and other private lenders) to convert her loans into equity during these same negotiations. If Ms. Manery’s efforts to change the term of the Loan Agreements were improper, then so too were 187 Ont. Inc.’s efforts to change the terms of the Loan Agreements.
84Clause 11 of the Loan Agreements contemplates amendments to the Agreement provided they are duly executed by the Borrower and the Lender. Thus, it was open to Ms. Manery to propose amendments to the Agreement that would allow a personal guarantee to be provided. This was not contrary to the fundamental purpose of the Loans.
85Therefore, I find that Ms. Manery did not breach the terms of the Loan Agreements. She was entitled to negotiate an extension of the Loan Agreements.
86I find the evidence establishes that the Loan Agreements matured on February 14, 2024, and were mutually extended to March 31, 2024. Written notice requesting repayment was made on March 14, 2024, if the parties were unable to agree to security terms. 187 Ont. Inc. defaulted on March 15, 2024, when it stopped paying interest and thereafter refused to provide a charge as agreed to in Clause 7 of the Loan Agreements.
II. When did the interest begin to accrue?
87I agree with Ms. Manery’s submissions that interest began to accrue from the time the Borrowers went into default on the interest payments, which was March 15, 2024.
88Section 1 of both Loan Agreements states that “provided that the Lender has provided the required Loan monies to the Borrower […], then the Borrower shall be obligated to pay interest on the outstanding principal commencing on […] and continuing until the Loan is repaid.”
89There is no clause suspending or limiting the accrual of interest after default. To the contrary, the parties expressly agreed that interest would continue until full repayment.
90It is undisputed that the funds under each Loan Agreement were advanced on February 9, 2022, and June 13, 2022, respectively.
91Accordingly, contractual interest at 14 percent began accruing from March 15, 2022, in respect of the first Loan Agreement and July 15, 2022 in respect of the second Loan Agreement. Interest under both Loan Agreements was paid monthly up to and including February 14, 2024.
92No payment has been made since February 14, 2024. The unpaid interest continues to accrue since that date.
93I find that pursuant to Clauses 6 and 9 of the Loan Agreements, Ms. Manery is entitled to repayment of the Loans, plus interest accruing from March 15, 2024 and all costs incurred in enforcing the Loan Agreements.
III. Is Ms. Manery Entitled to an Equitable Mortgage?
94Clause 7 of the Loan Agreements provides that “in the event the debt is in default, the Borrower hereby consents to the Lender registering a charge against the following property known as 147 Deschamps Ave., Ottawa, ON K1L 5Z5 for the amount of the debt plus interest incurred.”
95Despite the fact that the debt was in default, 187 Ont. Inc. refused to register a charge on the Property. At trial, counsel for 187 Ont. Inc. argued that Ms. Manery’s claim to an equitable mortgage is defeated by the fact that she invalidated the Loan Agreements by failing to act in good faith in the performance of the contracts. The courts have accepted that an equitable mortgage is not available when the loan itself is invalid or unenforceable: Ikpa v. Itamunoala, 2018 ONSC 3974, (Ikpa), at para. 46.
96This is not a case like Ikpa, where the promissory note was unenforceable because it provided for a usurious rate of interest. Nor is it a case like Jones v. Quinn, also cited by the defendant, where the optionor shifted positions, ignored communications, refused to sign documents he previously acknowledged were required, and put deliberate “roadblocks” in place to prevent the option holder from completing the option.
97As noted above, Ms. Manery negotiated in good faith the changes she was seeking in the Loan Agreements. The Loan Agreements were valid and enforceable. They provided for the registration of a charge on 147 Deschamps in the event of a default. Therefore, Ms. Manery was entitled to ask for a charge to be placed on the Property.
98In Elias Markets Ltd., Re, (2006), 274 D.L.R. (4th) 166 (Elias Markets) (Ont. C.A.), at para. 63, the Court of Appeal for Ontario stated that an equitable mortgage is meant to enforce “a common intention of the mortgagor and mortgagee to secure property for either a past debt or future advances, where that common intention is unenforceable under the strict demands of the common law.” An equitable mortgage may also result from an agreement in writing duly signed to execute a legal mortgage: Emmott v. Edmonds, 2010 ONSC 4185, at para. 64, cited with approval in Greenspan v. Van Clieaf, 2023 ONCA 681, 487 D.L.R. (4th) 291, at para. 45 (Van Clieaf).
99Given that an equitable mortgage derives from an agreement, the determination of whether there is an equitable mortgage is a matter of contractual interpretation: see Elias Markets, at para. 66 and Van Clieaf, at para. 47. This requires the court to follow the principles of contractual interpretation set out in Creston Moly Corp. v. Sattva Capital Corp, 2014 SCC 53, [2014] 2 S.C.R. 633 (Sattva). The court is to determine the intent of the parties, based on the words in the contract used in their ordinary and grammatical meaning, consistent with the surrounding circumstances reasonably known to the parties at the time the contract was formed: see Sattva, at para. 47. While the surrounding circumstances are relevant to interpreting the terms of a contract, they cannot be used to overwhelm the meaning of the words in the contract or to create what amounts to a new agreement: see Sattva, at para. 57.
100The surrounding circumstances or factual matrix do not include the parties’ conduct following the formation of the contract: Shewchuk v. Blackmont Capital Inc. 2016 ONCA 912, 404 D.L.R. (4th) 512, at para. 41.
101In the present case, 187 Ont. Inc. purchased 147 Deschamps on March 2, 2022, for $1,800,000. It is undisputed that the first $200,000 provided by Ms. Manery was used towards the downpayment and the second $200,000 was used towards renovations.
102A plain reading of Clause 7 evinces the mutual consent required to create an equitable mortgage. The language of Clause 7 also establishes that the right to a charge and by extension, an equitable mortgage, arises at the time the debt is in default, not when the funds are advanced, as argued by Ms. Manery (see: Elias Markets, at para. 76; and Van Clieaf, at para. 61).
103I agree with Ms. Manery’s submissions that Clause 7 of the Loan Agreements expressly ties the Loans to 147 Deschamps Ave, authorizes Ms. Manery to register a charge upon default, and makes clear that 147 Deschamps Ave was to serve as security. These terms, combined with the fact that Ms. Manery’s funds were used to finance the purchase and renovation of 147 Deschamps Ave, support a finding that the parties intended the loan to be secured on the Property in certain circumstances. That intention is sufficient to give rise to an equitable mortgage. Where the parties have clearly agreed in writing that a mortgage or security interest will arise in specified circumstances, the court’s role is simply to give effect to that intention: Emmott v. Edmonds, at para. 66.
104The Loan Agreement was in default on March 15, 2024, when 187 Ont. Inc. stopped paying interest and thereafter refused to provide a charge as agreed to in Clause 7 of the Loan Agreements. At that point, an equitable mortgage was established.
105In her written submissions, Ms. Manery seeks a declaration that she holds an equitable mortgage in the amount of $400,000 plus interest against 147 Deschamps and a declaration that her mortgage ranks in priority to the construction lien in favour of the Defendant Amcot Stucco Design Inc. registered on February 16, 2024. However, the Amcot lien has since been repaid. Therefore, the issue of priority with respect to Amcot is no longer in play.
106In her reply written submissions, Ms. Manery does not refer to the Amcot construction lien. Rather, she requests a declaration that Ms. Manery’s equitable mortgage has priority over the construction mortgage that was registered on title to 147 Deschamps on December 20, 2024 for $3,651,390 in favour of First Source Financial Management Inc.
107187 Ont. Inc. argues that Ms. Manery’s submissions relating to the new construction financing obtained by 187 Ont. Inc. on December 20, 2024 completely ignore the purpose of construction financing and what funds can and cannot be paid from them. As Ms. Conrad and Ms. Lalancette testified, the construction financing terms restricted payments from it to trades and expenses relating to construction. The construction loan could not be used to repay Manery’s Loan Agreements, according to 187 Ont. Inc.
108In addition, 187 Ont. Inc. argues that Ms. Manery has provided no support for her assertion that any equitable mortgage would rank in priority to other mortgages registered on title. Nor has she provided notice to the mortgagees of the relief that she is seeking in this claim. Those mortgagees would be entitled to notice and the opportunity to respond Ms. Manery’s claim.
109It is true that at certain points, Ms. Manery’s counsel seemed to argue that Ms. Manery should have been paid out of the First Source construction loan that was obtained on December 20, 2024. However, she also argued that Ms. Manery’s equitable mortgage ranked in priority to the First Source construction loan, which would not necessarily mean that she was asking that the equitable mortgage be repaid out of the construction loan.
110With one exception, I find Ms. Manery’s submissions regarding the priority of her equitable mortgage over the First Source construction loan to be convincing. I do not accept her submission that the equitable mortgage arose at the time of the advance of the funds from the Loans. Rather, as stated by the Court of Appeal in Van Clieaf, at para. 61, one must look to the actual Loan Agreement to determine when the equitable mortgage would arise. In this case, the Loan Agreements provide that the right to register a charge arises upon default, which was March 15, 2024.
111In Elias, the Ontario Court of Appeal adopted the equitable rules of priority set out in Falconbridge on Mortgages, 5th ed., looseleaf (Agincourt, Ont.: Canada Law Book, 2003) at paras. 7:20 – 7:40. According to these rules, when a first equitable mortgage is followed by a subsequent legal mortgage, the legal mortgage will take priority only if the legal mortgagee acquired its interest “in good faith for value and without notice.”
112Ms. Manery’s equitable mortgage arose on March 15, 2024. I agree with her that any later-registered legal mortgage on 147 Deschamps Ave (such as the First Source mortgage) would take priority only if the mortgagee can demonstrate that it gave value and took its charge without notice, actual or constructive, of Ms. Manery’s prior equitable claim.
113The evidence establishes that First Source had actual notice of Ms. Manery’s claim, which explicitly states that she is seeking an equitable mortgage over 147 Deschamps.
114The email exchanges between Ms. Conrad and Jimmy Castonguay, who was involved in the First Source mortgage, show that First Source was made aware of Ms. Manery’s Statement of Claim, including her pleaded entitlement to an equitable mortgage over 147 Deschamps Ave, well before First Source advanced funds or finalized its charge. Therefore, First Source had actual notice of Ms. Manery’s claim for an equitable mortgage and cannot claim to be a legal mortgagee “in good faith and without notice”.
115First Source Mortgage could have sought leave to be added as a party or to intervene in this action to argue their position with respect to the priority or their loan over the equitable mortgage. They did not do so.
116I find that Ms. Manery’s equitable mortgage takes priority over the First Source mortgage.
The Counterclaim
IV. Was Ms. Manery’s Facebook Post Defamatory Toward 187 Ont. Inc.?
117187 Ont. Inc. counterclaimed against Ms. Manery for defamation. 187 Ont. Inc. contends that Ms. Manery made two sets of defamatory statements, for which she should be held liable: (1) statements to Align Mortgage that were republished in emails to other investors; and (2) a public statement on her Facebook account on July 3, 2024.
118The tort of defamation is governed by a well-articulated test requiring that four criteria be met: (i) Ms. Manery made a statement; (ii) the words in the statement were published, meaning that they were communicated to at least one other person; (iii) the words in fact referred to 187 Ont. Inc; and (iv) the words were defamatory, in the sense that they would tend to lower 187 Ont. Inc.’s reputation in the eyes of a reasonable person: see Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, (Torstar), at para. 28.
119For a statement to be defamatory, it must “lower the reputation of the plaintiff in the estimation of right-thinking members of society generally, or expose the plaintiff to hatred, contempt, or ridicule”: Hudson v. Myong, 2020 BCSC 517, at para. 105.
120The court assesses the allegedly defamatory words from the perspective of a person who is reasonably thoughtful and informed but not excessively sensitive or fragile: Color Your World Corp. v. Canadian Broadcasting Corp. (1998), 156 D.L.R. (4th) 27 (Ont. C.A.), at para. 36.
121Defamatory meaning can be proven based on the literal meaning, extrinsic circumstances unique to certain readers, or an inferential meaning or innuendo: Canadian Union of Postal Workers v. Quebecor Media Inc., 2024 ONSC 6484 (CUPW), at para. 78.
The Facebook Post
122In the present case, Ms. Manery concedes that she made the statements on the Facebook Post, and that the words were published to at least one other person. The remaining issues to be decided are whether the words referred to 187 Ont. Inc. and would tend to lower 187 Ont. Inc.’s reputation in the eyes of a reasonable person.
123Ms. Manery did not identify “1000090187 Ontario Inc.” or “187 Ont. Inc.” by name in her Facebook Post. The only appearance of that name is within the Statement of Claim attached to the Post. The Post mentions individuals by name - Ms. Conrad, Ms. Lalancette, and their husbands - none of whom are parties to this proceeding.
124In Warman v. Kay, 2024 ONSC 1623 (Div. Ct.), Rees J. summarized the law for determining whether the impugned comments could be said to refer to the plaintiff in a defamation action, even though they do not use the plaintiff’s name. In the words of Rees J.:
The test for determining whether the tweets referred to Mr. Warman is two-fold:
a. Are the impugned words capable of referring to the plaintiff? This is a question of law.
b. If yes, would the words reasonably lead persons who know the plaintiff to believe that the plaintiff was the person referred to? This is a question of fact.
See Arnott v. College of Physicians, [1954] S.C.R. 538, at p. 554, relying on Knupffer v. London Express Newspaper Ltd., [1944] A.C. 116 (H.L.), at p. 121.
On the second branch, the trier of fact must consider the circumstances, including relevant extrinsic evidence connecting the words with the plaintiff: Morgan v. Odhams Press Ltd., [1971] 2 All E.R. 1156 (H.L.), at p. 1175; Sykes v. Fraser, [1974] S.C.R. 526, at p. 559.
125I find that the first branch of the test is met in this case because the impugned words are capable of referring to 187 Ont. Inc. The four named individuals have a legal relationship with 187 Ont. Inc. as the principals of that company.
126With regard to the second branch of the test, Ms. Manery argued that the evidence does not support that the impugned statements would reasonably lead persons who know 187 Ont. Inc. to believe that 187 Ont. Inc. was the entity referred to in the Posts. Ms. Manery points to Ms. Conrad’s evidence at trial that neither herself, Ms. Lalancette, nor either of their husbands are publicly known as “187 Ont. Inc.”. They are associated with “the Twins,” referring to the two properties - 143 and 147 Deschamps Avenue.
127However, Ms. Manery herself made the association between 187 Ont. Inc. and the named individuals in the Post by attaching the Statement of Claim. While the Statement of Claim does not name the individuals as the principals of 187 Ont. Inc., it does refer to the default on Ms. Manery’s loans by 187 Ont. Inc. Her post makes it clear that it was the named individuals, as the principals of that company, who acted on its behalf and therefore, committed the loan default.
128Consequently, I find that the words of the Post and the attached Statement of Claim would reasonably lead people who know 187 Ont. Inc. to believe that the words were referring to it as well as the named individuals.
129The question now is whether Ms. Manery’s Post would tend to lower 187 Ont. Inc.’s reputation in the eyes of a right-thinking member of society. The purported defamatory nature of the Post stems from the association that is made between the “Collard” case and the named individuals – Ms. Conrad and Ms. Lalancette and their husbands. The defendant states that Collard Properties are associated with fraudulent real estate transactions. The defendant further states that the “sting” of the apparently neutral comments made in Ms. Manery’s Post derives from the fact that the Collards have been described in other Facebook Posts as “liars and fraudsters”.
130In assessing the claim of defamation, I have considered the words used in the Post but also considered the “meaning of the words” as they are “generally … understood in the context of all of the circumstances and the publication as a whole”: Taseko Mines Ltd., v. Western Canada Wilderness Committee, 2017 BCCA 431 (Taseko), at para. 44; Simán v. Eisenbrandt, 2023 BCSC 379, at para. 57. In applying this test, the court is guided by reasonableness: it will not “strain to give a particular meaning to published words or stretch them beyond their fair meaning”. The words must be “judged by their general tenor,” and “language will not be tortured to make certain that which is not certain.” It is not the “ingeniously possible interpretation” but the “plainly normal construction that is preferred”: Galloway v. A.B, 2021 BCSC 2344, at para. 332.
131Ms. Manery testified that there are several Facebook groups in which she participates. One is called “Fearless Real Estate Investors Facebook” group (the Fearless Investors group). It is a closed, members-only group. There is another group called the “Legends Inner Circle Facebook Group” (Legends group).
132Ms. Manery testified that prior to the present litigation, she had posted about another transaction involving the Collards. In that post, she stated that she had not been repaid the loan she made to the Collards for hundreds of thousands of dollars, nor had she received any notice of the Collards inability to repay despite multiple requests for updates. She stated that she subsequently received judgment against the Collards but had still not received repayment of the debt.
133A careful reading of the Posts made before and after Ms. Manery’s Post about 187’s principals reveals that there were references to a number of other bad investment experiences that did not relate to Collard Properties. There are also Posts in which the writers describe their negative experiences but do not name the borrower. It cannot be assumed that these writers were referring to the Collards. However, there appears to be a few Posts in which the writers claim that the Collards lied to their face. Is this sufficient context to colour Ms. Manery’s Post as defamatory? I think not.
134I find that the contextual background prior to Ms. Manery’s Post reflected a concern that borrowers were reneging on their promises to pay back investors and that investors were unable to access this information before investing with that borrower.
135The discussions on the Fearless Investors group related to whether borrowers who defaulted on loans should be named publicly so that investors could exercise appropriate caution with those borrowers or whether that would jeopardize future partnerships. There was a general call for transparency and honesty about investor experiences. Investors expressed frustration over the lack of communication, withheld financial information and misleading reassurances regarding repayments. Some people expressed the latter concern in terms of dishonesty on the part of the borrowers. The posts reflect the view that had the investors known about others’ experiences earlier, they would have made different financial decisions.
136There is no question that words like “frustration”, “liars”, “lying” and “Ponzi scheme” were used in some posts. However, not all the posts using those words were referring to the Collards. Some were quite ambiguous or unspecific in their references.
137In one Post that was made before Ms. Manery’s Post, the writer stated:
I think at this point the fair statements are that we all want our money back. And I think it’s important for those that have asked the Collards for communication or when they’ve been asked by the Collards to give up security, but refused to honor in writing their own words, that we know this from each other. That’s how we actually protect each other from further losses.
138This post reflects a measured and carefully worded approach to airing a concern about the writer’s investment experience with the Collards. It does not refer to them as “liars” or “fraudsters”.
139The defendant states that most of the posts that refer to investors not being repaid refer to the situation with Collard properties and statements about their communications with investors and whether they repaid their investors. Ms. Conrad stated in her affidavit that “Ms. Manery’s reference to investors expressing frustration over a lack of communication, withholding financial information and misleading assurances regarding payments all refer to Collard Properties Inc.” I disagree.
140Collard Properties was offered as one example of a borrower who failed to repay money it owed to investors, but this was not the only example. While it is true that one writer stated that the Collards lied to her face, that does not mean that Ms. Manery was adopting this statement or that her Post took on the same meaning as the post of another writer.
141It should also be noted that there is no reference or suggestion in the Post that the named individuals, specifically Ms. Conrad and Ms. Lalancette, are “fraudulent” or “disreputable”. Furthermore, Ms. Manery never stated or inferred in her Post that the Collards (or 187 Ont. Inc.) were “fraudulent” or “engaged in fraud” as 187 Ont. Inc. claims. Even if some of the posts in the Facebook groups refer to the Collards as liars, I find that it is stretching the language of the Post beyond its plain meaning to infer that Ms. Manery meant to call 187 Ont. Inc. and its principals liars and fraudsters.
142Ms. Manery also did not suggest that potential investors should not invest with the named individuals, or they would lose their money. The most that can be inferred from the Post is that potential investors should be cautious about investing in 187 Ont. Inc. because, like Collard Properties, they defaulted on their loan to her, failed to include her in investor correspondence and failed to honour their promises to pay.
143I find that the words used by Ms. Manery in the context of the other Facebook posts did not convey the message ascribed to them by the defendant. A right-minded person reading Ms. Manery’s Post in the context of the other posts would not infer that the defendant was a dishonest and disreputable borrower. Rather, they would infer that like others in the Facebook groups, Ms. Manery had had a negative experience with Borrowers who defaulted on a loan. It was a word of caution to people who were seeking information about potential investments. The inference that is most reasonable and plausible, based on the entire context, is that borrowers should be careful about investing in 187 Ont. Inc. because like Collard Properties, 187 Ont. Inc. had defaulted on a loan, failed to honour its promises to repay and withheld information.
144I disagree with the defendant that a reasonable person would infer that Ms. Manery is telling them not to invest in 187 Ont. Inc. or they will lose their money. Rather, in the context of the other posts I think a reasonable person would infer that Ms. Manery was sounding a note of caution. A reasonable investor reading Ms. Manery’s Post and the other posts would be prompted to question the Borrowers as to why the default occurred and what the financial circumstances were for 187 Ont. Inc. at the time of their investment. This is what many of the writers in the subsequent posts were saying: do your due diligence; inform yourself about past defaults to the extent that you can; and ask questions before you invest.
145A contextual reading of Ms. Manery’s Post leads me to the conclusion that a right-minded member of society would not find that Ms. Manery’s Post lowered the reputation of 187 Ont. Inc. in the eyes of others.
146The evidence of Ms. Conrad and Ms. Lalancette supports this conclusion. They testified that a number of investors called them and asked questions about their investment in the Syndicated Mortgage. While it is true that some investors refused to renew their contributions to the Syndicated Mortgage, others agreed to increase their contributions, and in the end, Ms. Lalancette and Ms. Conrad were able to raise substantially more money than they previously had raised through the Syndicated Mortgage. Therefore, although questions were raised and some investors lost confidence in the investment, 187 Ont. Inc.’s reputation was not lowered to the level of Collard Properties and 187 Ont. Inc.’s ability (through its principals) to raise funds was not diminished.
147I note that 187 Ont. Inc. was not responsible for the Syndicated Mortgage. That was a mortgage that was taken out by 256 Ont. Inc. to fund 143 Deschamps. Therefore, strictly speaking, the impact of Ms. Manery’s Post on 256 Ont. Inc.’s ability to raise money through the Syndicated Mortgage is irrelevant.
148Ms. Conrad also gave evidence that after Ms. Manery’s Post, 187 Ont. Inc. was unable to raise new private funds. However, Ms. Conrad’s correspondence to investors in March 2024, which was before Ms. Manery’s Post, indicated that 187 Ont. Inc.’s “efforts to secure further private debt had fallen victim to the overall reluctance from some investors to provide non-secured debt at the moment”. She testified that the private investment climate at that time was poor. Ms. Conrad’s statement that after Ms. Manery’s Post, 187 Ont. Inc. was unable to secure private investors must be understood in the context of the overall lack of confidence that borrowers had with private, unsecured loans. It is apparent from the posts in the Facebook investor groups that investor confidence was low even before Ms. Manery’s Post.
149Ms. Conrad testified that 187 Ont. Inc. was able to secure financing through First Source Mortgage Corporation. However, questions were raised by Jimmy Castonguay, the Associate Vice-President of GreenBirch, the company that secured First Source’s loan. Those questions related to the Statement of Claim filed by Ms. Manery and the financial health of 187 Ont. Inc. The defendant argued that 187 Ont. Inc.’s inability to attract private lenders and the delay caused by GreenBirch’s questions constituted proof that 187 Ont. Inc.’s reputation was diminished in the eyes of the investment community by Ms. Manery’s Post.
150Again, I disagree. Ms. Manery’s Post alerted the investment community to another problematic experience with a private investment. It was one of many experiences reported on the Facebook investor groups. Investor confidence was already low when Ms. Manery made her Post. It caused people to ask questions about their investments, and some decided not to invest. Furthermore, the evidence produced at trial established that neither Mr. Castonguay nor First Source were aware of Ms. Manery’s Facebook Post until it was brought to their attention by Ms. Conrad and Ms. Lalancette, and that the Post and Statement of Claim had no impact on First Source’s decision to lend monies to 187. The fact that First Source decided to grant the mortgage for $3.6 million significantly weakens 187’s claim that its reputation or that of Ms. Conrad and Ms. Lalancette was weakened by the Post.
151Therefore, I conclude that Ms. Manery’s Post on Facebook was not defamatory.
Alleged Defamatory Statements to Investors in the Syndicated Mortgage
152The defendant also alleges that Ms. Manery made false and defamatory statements about the Borrowers to the brokers at Align Mortgages within the context of her demand for the repayment of the Syndicated Mortgage for 143 Deschamps which was secured against the Du Gouverneur property.
153I find there is no evidence to support the allegations of defamation with respect to the Syndicated Mortgage. Although there were errors made in an email dated May 7, 2024, from Muriel Debroy of Align Mortgages to the investors, Ms. Manery produced her email in which she corrected these errors. Align expressly acknowledged that the incorrect statements in its investor email were its own mistake, not Ms. Manery’s words, and it corrected them within 48 hours. Even if the corrections were not entirely satisfactory, Ms. Manery had no role in drafting, approving, or circulating the corrections, and no duty to correct Align’s internal errors.
154There was no evidence that Ms. Manery made any other false or defamatory statements to her co-investors about 187 Ont. Inc., or the Conrads or Lalancettes in the context of the Syndicated Mortgage. On the contrary, the evidence supports the conclusion that Ms. Manery did not contact the other investors to malign 187, specifically:
Ms. Manery testified that she did not contact any of the other investors in the Syndicated Mortgage about her situation.
Mr. Robinson gave evidence that Ms. Manery did not interfere with any refinancing efforts and that she did not make any disparaging, false or misleading statements to the co-investors.
Ms. Debroy also provided evidence during examinations that she was not personally aware of anything that Ms. Manery said to the other Syndicated Mortgage investors to dissuade them from reinvesting in the Syndicated Mortgage.
155I accept the evidence of Ms. Manery, Mr. Robinson and Ms. Debroy.
156Therefore, I find that Ms. Manery did not make defamatory statements to the other investors in the Syndicated Mortgage; the examination of the allegations relating to the Syndicated Mortgage ends here.
Justification
157Even if Ms. Manery’s Post could be found to have lowered 187 Ont. Inc.’s reputation in the eyes of a reasonable investor, I find that the defence of justification or the truth of the statements applies in this case.
158The defence of justification requires a defendant to prove the substantial truth of the “sting” or main thrust of the defamation: Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645 (Bent), at paras. 107-108.
159Truth is a complete defence to defamation with respect to factual statements. While the defendant bears the burden of proving the truth of the words, the defendant need not prove every detail of the factual statements made. It is sufficient for the defendant to demonstrate that the factual statements are substantially correct: Libel and Slander Act, R.S.O. 1990, c. L.12, s. 22; Sidorsky v. CFCN Communications Ltd., [1994], 27 Alta. L.R. (3d) 296 (Q.B.), at para. 185, aff’d 1997 ABCA 280; and CUPW, at para. 104.
160As noted by Mew J. in CUPW, at paragraph 105, “[i]f a defendant can demonstrate that the words are substantially true, those words are not actionable, even if they were spoken with malice.”
161The defence of justification succeeds if the words complained of are true or substantially true. To avail herself of this defence, Ms. Manery would not need to prove the truth of each and every word, or the literal truth, but rather that the substance of the allegation is true. If the “gist or sting of the charge is proven to be true, minor inaccuracies do not defeat the defence of justification”: Bondar v. Neufeld, 2024 BCSC 594, at paras. 79, 80, and 82.
162As noted in the preceding analysis, the “sting” of the Post is as follows:
(1) Ms. Manery loaned the defendant $400k for 147 Deschamps;
(2) The loans and interest payments are in default;
(3) 187 Ont. Inc. has not honoured its verbal and written agreements to return the money;
(4) 187 Ont. Inc. has not included her in investor correspondence;
(5) Collard Properties Inc. defaulted on her loan to them in the past;
(6) Had Ms. Manery (and many others) been given a heads up about Collard Properties like she was providing in the Post, it would have saved many people’s hard-earned money;
(7) Investors should be cautious about investing their money in 187 Ont. Inc.; and
(8) The defendant’s lawyers were aware that she was making the Post today.
163The first two statements are non-contentious. Ms. Manery did in fact loan 187 Ont. Inc. $400,000 for 147 Deschamps and the loans and interest payments were and still are in default.
164With respect to the third statement, the defendant argues that 187 Ont. Inc. and its principals were always upfront about the fact that repaying her Loans was contingent upon getting a new mortgage for $2.5 million or finding replacement investors for the syndicated mortgage. That is, 187 Ont. Inc. and the principals did not promise, verbally or otherwise, to pay back Ms. Manery’s loans until they received the funds to do so.
165I find however, that 187 Ont. Inc.’s principals did make verbal statements that could reasonably have been taken to be promises of repayment. The statements would certainly have raised Ms. Manery’s expectations that she would soon be paid back her loans. For example, on March 17, 2024, Ms. Lalancette told Ms. Manery “you’re asking for it [the interest on the loan] to be repaid right now, so it will be paid as soon as we give you your $400,000 back. It’s not in a year, it’s …we’re getting your $400,000.” Ms. Lalancette told Mr. Timlin that the syndicated mortgage for $2.5 million was very close to being closed. She also stated that they were looking for replacement investors that would allow them to repay the funds. Ms. Lalancette stated during the meeting on March 17, 2024, that she was hopeful that in about a month to a month and a half, the new syndicated mortgage would be in place, and they could pay Ms. Manery back.
166There is no question that Ms. Lalancette and Ms. Conrad did not promise to pay unless those options came through. However, they did say that the repayment would happen well within a year’s time. Those promises of repayment were not fulfilled.
167With respect to the exclusion of Ms. Manery from investor correspondence, Ms. Conrad admitted in cross-examination that Ms. Manery was not included in their communications with investors after March 25, 2024. Ms. Conrad stated that this was because Ms. Manery had engaged legal counsel and indicated she preferred all communications to go through the lawyers. Investor correspondence was sent to Ms. Conrad’s lawyer but not forwarded to Ms. Manery due to a concern as to how it would be used. Regardless of the reason for not providing Ms. Manery with investor communications, it is a fact that she was not included after March 25, 2024.
168Statement number 5 that Collard Properties Inc. defaulted on their loans to Ms. Manery in the past is also true.
169With regard to statement 6, I find it to be substantially true, based on the evidence that I heard at trial. Ms. Manery testified that she and others in the Facebook investor groups were seeking information about borrowers so that they could make informed decisions before investing. I find it to be substantially true that had Ms. Manery and others in the Facebook groups received the information that Ms. Manery included in her Post, they would have asked questions about 187 Ont. Inc.’s finances and may have decided not to invest in 187 Ont. Inc. This statement is substantially true because it is not possible to know with certainty what other people would do with the information provided in the Post, but I find it to be highly likely and therefore, substantially true.
170Statement 7 is an inference from the context within which the Post was made. It is the most “injurious” interpretation Able Translations Ltd v Express International Translations Inc, 2018 ONCA 690, at para. 31. that can be given to the Post, in my opinion. As noted above, it is stretching the meaning of the words Ms. Manery used and unfairly associating the negative posts by others to Ms. Manery’s Post to say that she meant to call 187 Ont. Inc. and its principals fraudsters or liars or to say that no one should invest in 187 Ont. Inc. The worst that one could say of Ms. Manery’s Post is that she was cautioning people about investing in 187 Ont. Inc. because they could lose money. I find that the words of caution were substantially true. Investors should and do exercise caution when an investor has defaulted on a loan, failed to honour their promises and excluded an investor from communications.
171Finally, the fact that Ms. Manery warned 187 Ont. Inc.’s lawyer that she was going to make the Post is not in issue. It is true.
172Therefore, I find that the defence of justification applies to Ms. Manery’s Post. All of the elements of her Post, including the statements that could reasonably be inferred from the context, are substantially true. The Post is, therefore, not defamatory.
173Given the conclusions I have reached, it is not necessary for me to assess the validity of the other defences to a finding of defamation. Nevertheless, for the sake of completeness I will provide my analysis of the other defences raised by Ms. Manery.
The Defences of Fair Comment and Responsible Communication
174The defence of fair comment requires a defendant to establish four elements:
(a) The comment must be on a matter of public interest;
(b) The comment, though it can include inferences of fact, must be recognisable as comment;
(c) The comment must be based on fact; and
(d) The comment must satisfy the objective test: “Could any person honestly express that opinion on approved facts? WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, per Binnie J., at para. 28.
175On the first issue of public interest, the Ontario Court of Appeal reiterated in Benchwood Builders Inc. et al v. Prescott et al., 2025 ONCA 171, 508 D.L.R. (4th) 361, leave to appeal to Supreme Court of Canada granted, 41794 (October 23, 2025) (Benchwood Builders) that “to be a matter of public interest, the subject matter must be shown to be one inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached”: at para. 36.
176In Benchwood Builders, at para. 42, the Court of Appeal issued a reminder that online reviews of goods or services are not automatically matters of public interest. The Court of Appeal cited the following examples of online reviews or activities that rise above the purely private:
Canadian Union of Postal Workers (an expression that dealt with “the use of union funds to take positions on the conflict in the Middle East or to help an organization that allegedly supports attacks on Israel”); Thatcher-Craig (expressions related to municipal land use matters); Levant (expressions related to climate change); Hamer (expressions about animal welfare); and VAC Developments Limited (expressions about anti-Black racism and workplace harassment). Common to each of these cases is an expression that engages some broader societal concern. (Citations omitted.)
177The Court of Appeal held that although some members of the public might find the post interesting, this is not enough for the online communication or review to be a matter of public interest. It must engage some “broader societal concern, such as these described above” or it does not fall within the realm of public interest communications (Benchwood Buiders, at para. 43). Those issues of broader societal concern are things like climate change, racism, etc.
178Although Benchwood Builders concerned an anti-SLAPP motion, the words of the Court of Appeal with regard to the concept of “public Interest” are nevertheless applicable to public interest defences in the law of defamation. As the Court of Appeal stated in another anti-SLAPP case, the resolution of purely private disputes between more or less equals – disputes that have no immediate bearing on the rights or obligations of others – can seldom be a matter of public interest”: Grist v. TruGrp Inc., 2021 ONCA 309, 156 O.R. (3d) 171, at para. 19, citing Sokoloff v Tru-Path Occupational Therapy Services Ltd, 2020 ONCA 730, at para. 19.
179I find that the present case does not involve an expression that engages a broad societal concern. While the issue of private investments is important to a narrow segment of the public that has money to invest, it is not an issue of general public concern. It is not akin to racism, climate change or workplace harassment in terms of societal engagement.
180Therefore, I will not undertake an analysis of this defence.
181Similarly, the defence of responsible communication on a matter of public concern as first enunciated by the Supreme Court of Canada in Torstar is only available on matters of public interest. While public interest has been given a rather broad scope in certain respects, it is important to heed the words of the Court of Appeal in Benchwood Builders.
182I find that this case is similar to Dent-X Canada v. Houde, 2022 ONCA 414 (Dent-X), where a client posted a review of Dent-X on Facebook that included allegations of fraud. In Dent-X, the Court of Appeal upheld the motion judge’s finding that the nature of the statement related to private disputes between businesses and was not related to a matter of public interest.
183In the present case, the nature of the statement relates to various disputes between private lenders and borrowers. While the issue of transparency and freedom of expression in online discussions about investment disputes may be a matter of some interest to a small segment of the public, it does not thereby make Ms. Manery’s Post one that relates to a matter of general public interest: see Dent-X, at para. 10.
Privilege
184The words pleaded in an originating document commencing a legal action are protected by absolute privilege: Amato v. Welsh, 2013 ONCA 258, 362 D.L.R. (4th) 38, at para. 34. Absolute privilege provides complete immunity, meaning that it acts as a complete bar to a cause of action.
185According to the defendant, the defence of privilege is not available to Ms. Manery because in her Post, she did not limit herself to the issues and references in her Statement of Claim. For example, she did not name the principals of 187 Ont. Inc. in her Statement of Claim and did not allege that they failed to comply with the alleged oral agreements. The oral agreements were also not referred to in the Statement of Claim. Finally, 187 Ont. Inc. argues that there is no reference to Collard Properties Inc. in the Statement of Claim.
186I agree that the above-noted elements of Ms. Manery’s Post were not referred to in her pleadings and therefore, are not covered by absolute immunity. In addition, Ms. Manery’s exclusion from investor correspondence was not referred to in her Statement of Claim. Therefore, it is also not covered by absolute privilege.
187However, I find that Ms. Manery’s statements that she loaned the defendants $400k for 147 Deschamps and that the loans are in default were included in the Statement of Claim and are therefore subject to absolute privilege.
188The remaining statements from Ms. Manery’s Post are subject to qualified privilege, for the reasons that follow. For ease of reference, those statements are as follows:
a. That the defendant has not honoured their verbal and written agreements;
b. That the defendant has not included her in investor correspondence;
c. That she has been defaulted on in the past by Collard Properties Inc.; and
d. That if she (and many others) had been given a heads up like she was providing in the Post, it would have saved many people’s hard-earned money.
189Qualified privilege attaches to an occasion where the publisher has a legal, social, moral, or personal duty or interest to communicate information to a recipient with a reciprocal duty or interest to receive it: Torstar, at para. 105; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para 150.
190Qualified privilege protects the occasion upon which the words were spoken or published, rather than the words themselves, provided that the communicator had a duty or interest to publish and the recipient had a corresponding duty or interest to receive the information.
191In Thatcher-Craig v. Clearview (Township), 2023 ONCA 96, 480 D.L.R. (4th) 639, at para. 56, the Court of Appeal for Ontario stated that to assess the validity of the defence of qualified privilege, the court is required to:
(1) Determine whether the defendant (in this case, Ms. Manery) had “an interest or duty, legal, social, moral or personal” to publish the material (in this case, the Statement of Claim along with the comments in Ms. Manery’s Post), and whether the recipients of that material (the readers in the private investor groups) had a corresponding duty or interest to receive it;
(2) If so, precisely characterize the occasion of qualified privilege; and
(3) Determine whether the privilege was defeated by malice or because the scope of the occasion was exceeded or abused.
192I find that Ms. Manery had a social and personal interest in providing information to other private investors about her experiences as a lender, which have resulted in litigation against the borrowers. She testified that transparency and honesty in the private investment community have become very important issues for her and other investors. She testified that her interest in making posts like the impugned Post in the present case is to inform investors about potential risks and to provide information that can be used to formulate questions to put to the borrowers.
193There is a corresponding interest on the part of borrowers and lenders to be apprised of litigation regarding defaults and other practices on the part of borrowers that might be cause for concern and that might prompt investors to ask more pointed questions of borrowers.
194The occasion of the qualified privilege relates to the scope of the privilege. It is important to precisely define the scope of the privileged occasion so that one can determine whether it was exceeded: Clearview (Township), at para. 57. In defining the scope of the privileged occasion, it is important not to improperly narrow the occasion. As the Court of Appeal explained in Bent v. Platnick, at para. 124, qualified privilege, which is based on the reciprocal duty or interest of communicating and receiving information, is grounded in “the social utility of protecting particular communicative occasions from civil liability”. Similarly, in RTC Engineering Consultants Ltd. v. Ontario (2002), 58 O.R. (3d) 726, at para. 16, the Court of Appeal explained that the reciprocal duty or interest “should not be viewed technically or narrowly”.
195The occasion of qualified privilege in this case covers the events leading up to the Post that gave rise to litigation by Ms. Manery against lenders. The legal action and judgment against Collard Properties is included in the scope of privilege because it is relevant to the interest the investor community has in knowing about litigation involving lenders who have defaulted on loan agreements. As noted by Cory J. in Hill, at para 152, “[e]ven in private actions, such as those for wrongful dismissal or for personal damages, the public may well have an interest in knowing the kinds of submissions which can be put forward.”
196The next question is whether any of Ms. Manery’s comments exceeded the scope of the privilege. In Bent v. Platnick, the Supreme Court of Canada explained, at para. 128:
Qualified privilege may be defeated when the limits of the duty or interest have been exceeded. This is the case when the information communicated in a statement is not relevant to the discharge of the duty or the exercise of the right giving rise to the privilege, or when the information is not reasonably appropriate to the legitimate purposes of the occasion. [Emphasis added.]
197The first question is whether the use of the principals’ names in the Post exceeded the occasion of the privilege. I find that the principals’ names were both relevant and reasonably appropriate to the legitimate purposes of the occasion. Although it was 187 Ont. Inc. that was named in the Statement of Claim, the face of 187 Ont. Inc. was Ms. Lalancette and Ms. Conrad. Given that their husbands were also principals of 187 Ont. Inc. it was appropriate to include their names. Ms. Manery’s dealings were with Ms. Conrad and Ms. Lalancette and it was they who took action in the name of the corporation.
198The next question is whether Ms. Manery’s reference to the failure of Ms. Conrad and Ms. Lalancette to honour their verbal agreements with her fell outside the occasion of the qualified privilege. The verbal agreements to repay Ms. Manery formed an integral part of the negotiations to avoid litigation and a charge on 147 Deschamps. Ms. Manery gave evidence, which I accept, that she needed the money to be returned so that she could pay for her family’s expenses and for a project that she was undertaking in July 2024. She and Mr. Timlin pressed Ms. Conrad and Ms. Lalancette for a verbal agreement to repay the loans before July 2024. Both Ms. Lalancette and Ms. Conrad were reluctant to agree to a repayment date until they had secured financing, but they did agree that she would be paid before one year.
199I find Ms. Manery’s statements on the verbal agreements to be within the legitimate purposes of the occasion. They are relevant to the default issue, which is an issue in this litigation, and they form part of the experience that Ms. Manery had with 187 Ont. Inc. The statements do not contain hyperbole or personal attacks on the principals. They are accurate statements of the experiences that led Ms. Manery to commence legal action. As such, their connection to the litigation is close enough to fall within the occasion of qualified privilege.
200Similarly, Ms. Manery’s statement regarding her exclusion from the principals’ communications with investors is relevant and reasonably appropriate. It falls within in the scope of qualified privilege. As soon as Ms. Manery indicated that she was taking legal action, all correspondence regarding the investment in 187 Ont. Inc. were forwarded to 187 Ont. Inc.’s lawyer. Ms. Manery did not receive that correspondence. I find her statements regarding the investor communications to be within the occasion of qualified privilege because they relate to the proceedings against 187 Ont. Inc.
201As noted above, Ms. Manery’s statement that she was “also defaulted on by Collard Properties Inc.” falls within the occasion of qualified privilege because it involves litigation on loan defaults, which is within the scope of privilege in this case.
202Ms. Manery’s statement that if she (and many others) had been given a heads up like she was providing in the Post, it would have saved many people’s hard-earned money was made right after she stated that Collard Properties had defaulted on her loan with them. I find that this statement does not exceed the legitimate purposes of the occasion. Ms. Manery was providing a warning to investors to exercise caution with borrowers who have defaulted on loans. She was reflecting on the fact that if she and others had received such a warning before they invested, they would have saved themselves some money. The statement explains the social utility of her Post: to inform other investors of potentially risky investments. The statement did not involve hyperbole, or a personal attack on 187 Ont. Inc. or the principals. It was a reflection on her own experience with default-related litigation and her desire to help others avoid those experiences.
203Unlike the comments that were made in Hill, Ms. Manery’s comments, while not yet proven in a court of law, were restrained and focused on the legitimate purpose of warning other investors about the experiences that led her to commence legal action against 187 Ont. Inc.
204I fully understand why, from 187 Ont. Inc.’s perspective, the principals would prefer Ms. Manery to have said nothing or perhaps restrained herself to posting the Statement of Claim. However, I find that her comments were reasonably appropriate and were relevant to the legitimate purpose of informing other investors about the loan defaults and the litigation arising from that.
Malice
205The defence of qualified privilege may be defeated if 187 Ont. Inc. establishes that the impugned statements were made with malice. In Hill, at para. 145, the Supreme Court of Canada held that malice is made out if the defendant publishes a defamatory expression if 1) they knew it was false; 2) they published it with reckless indifference to whether it was true or false; 3) the dominant purpose was to injure the plaintiff because of spite or animosity; or 4) the statement was made for some other purpose which is improper or indirect.
206Proof of malice may arise from the language of the assertion itself or from the circumstances surrounding the publication of the comment: see Bent v. Platnick, at para. 136.
207The defendant argues that Ms. Manery clearly made the Facebook Post on July 3, 2024 for an ulterior purpose. Ms. Manery was aware on July 2, 2024 that the refinanced Syndicated Mortgage for 143 Deschamps was going to close on July 4, 2024 because she was copied on the email correspondence between Align Mortgages and the closing lawyer for the transaction.
208On July 2, 2024, legal counsel for 187 Ont. Inc., Ms. Erskine, received an email from Ms. Manery’s counsel Ms. Shaw Taylor. The email was also copied to 187 Ont. Inc.’s real estate counsel. In the email, Ms. Shaw Taylor confirms she is aware that there was a new RRSP syndicated mortgage that is expected to close on July 4, 2024. Ms. Shaw Taylor states that unless it was confirmed by the end of the following day that Ms. Manery would be repaid the $400,000 for the Loan Agreements plus interest and legal costs out of the new Syndicated Mortgage, Ms. Manery was considering “circulating online a copy of the Statement of Claim. This of course, will not inspire confidence in potential investors.”
209187 Ont. Inc. did not meet Ms. Manery’s demands for repayment because the principals maintained that they did not have sufficient money to pay back the loan plus interest and legal costs. Ms. Manery posted her Statement of Claim on Facebook on July 3, 2024 at 8 p.m., the day before the Syndicated Mortgage was due to close.
210Ms. Manery testified that she had been planning to make the Facebook Post well before information about the new Syndicated Mortgage came out. She admitted that when she saw that the Syndicated Mortgage was due to close, she spoke with Ms. Shaw Taylor about proposing a settlement from these funds. Ms. Manery testified that she would not have made the Post if the matter settled because then there would be no litigation against 187 Ont. Inc. to post about.
211Ms. Manery testified that she did not make the post on Facebook out of malice or a desire to defame the individuals in question but because she believed in transparency and accountability. Ms. Manery testified that she makes posts for the benefit of both borrowers and lenders. Ms. Manery stated that if borrowers are doing things like defaulting on loans and failing to communicate with their lenders, then people will stop investing and then other borrowers who have healthy businesses will not get money because of the degree of general suspicion that is generated. She stated that the lack of transparency and borrowers’ efforts to keep people quiet about defaults have created a toxic environment in the private investment community and she wanted to do something about this.
212In her affidavit, Ms. Manery stated:
Given the growing demand for transparency and my own experiences of being removed by 187 Ont. Inc. in or about April 2024 from all investor communications and meetings that I had been party to previously, I felt it was necessary and responsible to share my experience publicly ... My intention was not to harm anyone but rather to ensure that other investors had access to truthful, relevant information that could help them make informed decisions about their investments.
213Ms. Manery gave evidence that she had been involved in litigation where the borrowers defaulted, and she successfully sued them. She found out that after she won the lawsuit, the borrowers went on to borrow more money from other private lenders. She thought this was wrong. She thought that all lenders should have access to information about borrowers who have defaulted so that the lenders can ask the appropriate questions before they lend their money to these borrowers. Ms. Manery testified about her belief that actions like the present litigation are designed to silence lenders and are harmful to the principles of transparency and accountability.
214In the anti-SLAPP case of Luc Crawford Design Inc., et al v. Mullowney et al., 2021 ONSC 7849 (Mullowney), the defendant sent an email to counsel for the plaintiff indicating that he would refrain from posting another series of reviews/videos about a contentious home renovation project, if the plaintiff returned his deposit of $61,443.76 to him. Muszynski J. found this to be evidence of a possible ulterior or indirect motive stating: “it is difficult to reconcile Mr. Mullowney’s purported concern for the public with his offer to remove the reviews upon a return of his deposit.” Muszynski J. stated that she found the threat of posting additional reviews and the comment about “causing your clients grief” concerning.
215Ms. Erskine argued that Mullowney is on all fours with the present case where Ms. Manery’s counsel made a threat that Ms. Manery would Post her message on Facebook if the matter was not settled.
216I find the facts in the present case to be very different from those in Mullowney. In Mullowney, there was evidence that the defendants had made false allegations in the online reviews and that the motivation for doing so was to bully the plaintiffs into returning the deposit.
217In the present case, I accept Ms. Manery’s evidence that she had been intending to make the Post for some time prior to July 3, 2024, and that her motivation for doing so was to ensure that investors had access to truthful, relevant information that could help them make informed decisions about their investments. I have also found that Ms. Manery’s statements were substantially true.
218It is apparent that Ms. Manery also saw an opportunity to negotiate the settlement of her litigation against 187 Ont. Inc. by mentioning that she would not make the Post if the matter was resolved right away. This negotiation strategy was not successful, but she made the Post anyway. Arguably, it was not in her best interests to make the Post then, and her counsel acknowledged this by saying that the Post would not inspire confidence in investors. However, I accept that she felt duty-bound to make the Post, even though the consequences could be negative for her. There is a difference between clearly intending to harm and clearly intending to put pressure on the borrowers. I find that Ms. Manery did not intend to harm the borrowers, but she certainly intended to put pressure on them to return her money and put an end to the litigation. This, in my view, does not qualify as malice.
219Ms. Manery testified that she felt she had to make the Post because the principals were not being honest with investors who were being encouraged to replace her as an investor in the Syndicated Mortgage. They were not being told that they were replacing someone whose loan had gone into default. She stated that she wanted to protect potential investors. In that regard then, she was not seeking to undermine the mortgage closing but to warn the investors about what they were getting into.
220Ms. Lalancette testified that she informed the replacement investors verbally that they were replacing a lender who wanted her money back. She did not say whether she told the replacement investors that the lender’s money had not been repaid or that the loan was in default. Ms. Lalancette was asked to provide written documentation of her statements to the replacement investors, but she was not able to do so because, she stated, it was done verbally on the phone.
221I find that Ms. Manery’s concerns about whether the replacement investors in the Syndicated Mortgage were aware of the full circumstances of their investment were genuine and that the primary motive for her Post was to provide information to potential investors.
222It must be remembered that the new Syndicated Mortgage was not for the benefit of 187 Ont. Inc. and 147 Deschamps. It was for 256 Ontario Inc., to renovate 143 Deschamps. Therefore, 187 Ont. Inc. was not harmed by the withdrawal of investors from the new Syndicated Mortgage except to the extent that Ms. Manery’s investment in 187 Ont. Inc. could not be paid out. However, even before she made her Post, it was clear that the new Syndicated Mortgage could not cover her loans, interest and costs.
223I agree with Ms. Shaw Taylor that there is no evidence that the defendant, 187 Ont. Inc., lost investors as a result of Ms. Manery’s Post. Ms. Conrad testified that she had great difficulty raising private money after the Post. However, that was also the case prior to the Post; the investment climate at the time was poor. The evidence with respect to the impact of the Post on 187 Ont. Inc. was weak, at best, given that 187 Ont. Inc. was able to secure a loan for $3,651,390 by December 2024. This was more capital than 187 Ont. Inc. had prior to the Post. Yet Ms. Manery’s loans still have not been repaid.
Conclusion Regarding Defamation
224I find that neither Ms. Manery’s Facebook Post, nor her communications with Align Mortgage constitute defamatory statements. They did not lower 187 Ont. Inc.’s reputation in the eyes of a reasonable person. However, even if the Post did lower 187 Ont. Inc.’s reputation in the eyes of the reasonable person, I find that the defences of justification and privilege apply. Ms. Manery’s statements in the Post were substantially true. They were also subject to absolute and qualified privilege.
V. Did Ms. Manery Unlawfully Interfere With 187 Ont. Inc.’s Economic Relations?
225The tort of intentional interference with economic relations is established if three requirements are met: (1) Ms. Manery must have intended to injure 187 Ont. Inc.’s economic interests; (2) the interference must have been by illegal or unlawful means; and (3) 187 Ont. Inc. must have suffered economic harm or loss as a result: ID Inc. v. Toronto Wholesale Produce Assn., 2024 ONCA 948, at para. 21.
226I find that 187 Ont. Inc. has failed to establish the elements of this tort. Ms. Manery did not intend to injure 187 Ont. Inc.’s economic interests. In fact, it was against her own interests to cause harm to 187 Ont. Inc. since that would affect the company’s ability to repay her loans. Rather, the primary motive for making the Post was to warn other investors to be cautious about their investment because 187 Ont. Inc. had defaulted on its loans. Furthermore, as noted above, Ms. Manery did not intentionally malign 187 Ont. Inc. in her discussions with Muriel Debroy of Align Mortgages. Ms. Debroy misstated Ms. Manery’s comments in an email to the other Syndicated Mortgage investors. Ms. Manery corrected those mistakes. It was Align’s responsibility to ensure that the corrections were properly communicated to the investors. There was no evidence that Ms. Manery spoke with other investors to dissuade them from renewing their investment or increasing it.
227Secondly, as noted above, Ms. Manery did not defame 187 Ont. Inc. She made a Post that was substantially true on Facebook with the intention of providing information for investors and to encourage them to ask questions about their potential investments with 187 Ont. Inc. and its principals. This did not constitute defamation.
228Ms. Manery’s decision not to renew her RRSP loan to the Syndicated Mortgage for 143 Deschamps did not constitute intentional interference with 187 Ont. Inc.’s economic interests. Ms. Manery was entitled to change her mind about renewing her RRSP investment in the Syndicated Mortgage. By March-April 2024, Ms. Manery had lost confidence that the Loans were going to be repaid. It is understandable that this would cause her to question the wisdom of renewing her RRSP loan to the Syndicated Mortgage. There was nothing wrong with telling Align Mortgages that she did not intend to renew her RRSP loan.
229Finally, the evidence does not clearly establish that 187 Ont. Inc. was harmed by the Post or the discussion within Align Mortgages. Ms. Lalancette and Ms. Conrad may have had to work harder to raise the capital that they needed for 147 Deschamps, but they were ultimately successful. While 187 Ont. Inc. may have been required to pay a higher rate of interest for the loan, that was not the result of unlawful actions on the part of Ms. Manery.
230I find that 187 Ont. Inc. has not established that Ms. Manery intentionally interfered with 187 Ont. Inc.’s economic interests.
Final Conclusion
231Ms. Manery has succeeded in proving her claim. Pursuant to the Loan Agreements, 187 Ont. Inc. is required to pay back the $400,000 in principal owing to Ms. Manery plus interest at the contractual rate, which runs from March 15, 2024 until the loan is paid off. In addition, 187 Ont. Inc. must pay all costs, expenses and expenditures including, without limitation, costs incurred by enforcing the Loan Agreements as a result of the default.
232187 Ont. Inc. must register an equitable mortgage on the Property, as of March 15, 2024, which mortgage has priority over the First Source Mortgage.
233187 Ont. Inc. has failed to establish that Ms. Manery intentionally interfered with its economic interests and that Ms. Manery defamed 187 Ont. Inc. As such there is no need to consider whether there are damages flowing from the impugned conduct and no need to determine whether equitable set-off would apply in this case.
Costs
234Ms. Manery was entirely successful in this matter. Therefore, she is presumptively entitled to her costs. I see no evidence to rebut that presumption; she is entitled to her costs.
235Therefore, I would encourage the parties to come to an agreement with respect to costs, failing which, they may make submissions to me on the following timetable:
(1) Ms. Manery’s cost submissions will be provided by May 18, 2026;
(2) 187 Ont. Inc.’s cost submission will be provided by June 1, 2026;
236Cost submissions will be no more than five (5) pages in length (including the Bill of Costs). The formatting will be 11 pt font and 1.5 spacing. If I have any questions, the parties will be asked to appear virtually to respond to my questions.
Justice K.A. Jensen
Released: May 6, 2026