COURT FILE NO.: CV-25-00736246-0000 CV-25-00736223-0000 CV-25-00736242-0000 CV-25-00739079-0000 CV-25-00742457-0000
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: BIRJU DATTANI, Plaintiff
AND:
MELISSA LANTSMAN et al., Defendants
BEFORE: Schabas J.
COUNSEL: Alexi N. Wood and Erica Berry, for the Plaintiff
Gavin Tighe, Stephen Thiele, and Abigail Korbin for Melissa Lantsman
Sheldon Inkol for Ezra Levant and Rebel News Network
Jacob Klugsberg for Dahlia Kurtz
Charles Daoust for Centre for Israel and Jewish Affairs
Armaan Kassan for National Council of Canadian Muslims
Spencer Bass and Genevieve Citron for Independent Jewish Voices Canada
HEARD: June 5, 2026
ENDORSEMENT
Introduction
1The defendants in these defamation actions have brought anti-SLAPP motions seeking to have the actions dismissed pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The actions involve the same plaintiff and there are issues in common.
2In short, the plaintiff, who was appointed Chief Commissioner of the Canadian Human Rights Commission on June 11, 2024, is suing the defendants over allegations made by the defendants about him including, among other things, that the plaintiff is a "terror supporter", a "Jew-hater", and a man who "praised terrorism as a tactic against Jews." Following the publication of these and other similar statements, the plaintiff resigned as Chief Commissioner on August 12, 2024. Subsequently, in 2025, the plaintiff commenced these actions.
3The defendants have defended the actions, relying on defences to defamation including justification, qualified privilege, fair comment, and responsible communication in the public interest.
4It appears that a major point of contention between the parties will be what constitutes “anti-semitism”, and both parties have filed evidence addressing this issue.
5On February 17, 2026, following a case conference with counsel to address the proposed anti-SLAPP motions, a schedule was set for the exchange of evidence and argument leading to a two-day hearing before me scheduled for June 11 and 12, 2026. This schedule included exchanges of evidence, time for out-of-court cross-examinations and the exchange of factums, all to be completed by May 29, 2026.
6I understand that the parties have complied with the schedule. At a case conference held on June 4, 2026 (also set as part of the schedule), all parties confirmed they are ready to proceed with the anti-SLAPP motions on June 11 and 12, 2026.
7The case conference also addressed two other issues: (1) two motions to intervene in the anti-SLAPP motions; and (2) the order and timing of the presentation of oral argument.
The motions to intervene
Background
8On Friday afternoon, May 29, 2026, my assistant received a motion record and factum from counsel representing Independent Jewish Voices Canada (“IJV”), seeking to intervene in the anti-SLAPP motions as a party or, alternatively, as a friend of the Court pursuant to Rule 13 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Counsel for IJV advised that the material was served the same day, and proposed that the motion be heard in writing, which was opposed by the defendants.
9The IJV motion came to my attention on the evening of May 29, 2026. On Monday morning, June 1, 2026, I directed that the procedure for determining the motion to intervene could be addressed at the case conference on June 4, 2026, and invited the parties to provide their positions in case conference briefs. I also directed that the defendants would have until 5:00 p.m. on June 4 to file any responding materials to IJV’s motion to intervene.
10Just before 5:00 p.m. on Monday, June 1, 2026, my assistant received a motion record, submitted by counsel on behalf of the National Council of Canadian Muslims (“NCCM”), seeking to intervene in the anti-SLAPP motions as a friend of the court under Rule 13.02. The following day, I directed that counsel for the NCCM could also provide a case conference brief and attend the case conference on June 4, 2026.
11Both proposed interveners ask that the affidavits they filed in support of their intervention motions form part of the record on the anti-SLAPP motions and they seek leave to file factums up to 10 pages in length and make oral submissions of 15 minutes each.
12The plaintiff does not oppose the motions to intervene.
13The defendants (moving parties in the anti-SLAPP motions) filed a Joint Case Conference Brief which addressed the proposed interventions. I also heard brief submissions at the case conference from Mr. Tighe, speaking on behalf of all the defendants, as to why the motions to intervene should be dismissed. Mr. Tighe was content to have me decide the motions following the case conference. Aside from their Joint Case Conference Brief, the defendants have filed no other materials responding to the intervention motions.
The test for intervention: Rule 13
14A motion to intervene as a “party” is addressed in Rule 13.01. It requires that the proposed added party show that they “may be adversely affected by a judgment in the proceeding” or “that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.” Even then, however, “the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.”
15Under Rule 13.02, the court may grant leave to intervene as a friend of the court “for the purpose of rendering assistance to the court by way of argument.”
16In both circumstances, the granting of leave is in the discretion of the court, taking into account the tests in the Rules. Although speaking about interventions at the appeal stage, the Court of Appeal has stated that matters to consider include “the nature of the case; the issues which arise; and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties”: Solmar Inc. v. Hall, 2025 ONCA 570 at para. 10, citing Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 6886 (ON CA), 74 O.R. (2d) 164 (C.A.), at p. 167.
17In Animal Justice v. Ontario (Attorney General), 2024 ONCA 941, Monahan J.A. stated that in deciding whether to permit an intervention as a friend of the court, “[t]he overarching issue is whether the applicant is likely able to make a useful contribution to the resolution of the appeal without causing injustice or prejudice to the immediate parties.” He continued, stating at para. 11, that in order to satisfy this test, at least one of the following criteria articulated in Bedford v. Canada (Attorney General), 2009 ONCA 669, 98 O.R. (3d) 792, at para. 2 should be met:
the proposed intervener has a real, substantial, and identifiable interest in the subject matter of the proceedings;
the proposed intervener has an important perspective distinct from the immediate parties; or
the intervener is a well-recognized group with a special expertise and a broadly identifiable membership base.
18In Animal Justice, Monahan J.A. also observed at para. 12 that “[t]he test for granting leave in constitutional cases is more relaxed than in litigation between private parties”, noting that in constitutional cases the court may benefit from various perspectives and the decision “may have a wide impact on the rights of others.”
19In Solmar, an appeal from an unsuccessful anti-SLAPP motion, Roberts J.A. acknowledged that although all anti-SLAPP suits involve some level of public interest, they still concern disputes between private parties, stating at para. 16:
Intervention, however, is to be granted sparingly and only where it can be of real assistance to the court. While constitutional cases may provide a larger scope for intervention, this is not the case for private disputes, even disputes that have public interest components, like the present one. To permit otherwise would run the risk of unnecessarily expanding the focus of every civil, private dispute beyond the issues that the parties have chosen to frame their dispute. Every s. 137.1 motion involves issues of freedom of expression; however, they are determined on the particular facts of each case. As I noted in Baldwin v. Imperial Metals Corporation, 2021 ONCA 114, at para. 3, “[w]hat constitutes “a useful contribution” will depend on the circumstances of the case”. [Citations omitted.]
Analysis
20The motions to intervene are dismissed, for several reasons.
21The intervention motions are brought in private litigation between private parties. This is not a case in which the validity of legislation is being challenged or, so far as I am aware, a novel interpretation of law is being advanced. Thus, the test for intervention must be applied more rigorously than in constitutional or public interest litigation.
22Despite the presence of a public interest component, notably the issues of what constitutes “anti-semitism” and freedom of expression, the findings to be made remain findings made in a private action involving, in each of these cases, just two parties.
23It is also significant that the motions are to intervene in anti-SLAPP motions.
24Section 137.1 of the Courts of Justice Act was enacted in 2015 to provide an expeditious process for striking out strategic lawsuits that lack merit and limit freedom of expression or, put bluntly, muzzle the defendant. This is why the acronym SLAPP, which is derived from the term “strategic litigation against public participation”, is used. The purposes of the anti-SLAPP regime are outlined in s. 137.1(1):
(a) to encourage individuals to express themselves on matters of public interest;
(b) to promote broad participation in debates on matters of public interest;
(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.
25Anti-SLAPP motions are decided on the test set out in s. 137.1. While the merits of the action and the defences are considerations, the “grounds to believe” standard means the merits are not analyzed in granular detail. As the Court of Appeal recently put it in Benchwood Builders, Inc. v. Prescott, 2025 ONCA 171, 508 D.L.R. (4th) 361, at para. 59, the “fundamental crux” of an anti-SLAPP motion is the weighing exercise in s. 137.1(4)(b), balancing the harm to the plaintiff and whether it outweighs the public interest in protecting expression.
26The test for dismissal is not based on who will win or lose at trial, nor is the test whether there is a “genuine issue requiring a trial” as found in Rule 20 dealing with summary judgment. The anti-SLAPP test is more nuanced to reflect the competing interests of protecting reputation and protecting freedom of speech in the context of statements that relate to matters of public interest: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at paras. 51-52.
27These points were recently summarized by the Court of Appeal in Benchwood Builders, at para. 57:
…this court has observed that anti-SLAPP motions have “been misused as a costly and time-consuming surrogate for a summary judgment motion” in defamation actions. They are not to be “a new form of summary trial on the merits of a defamation action”. Brown J.A. recently commented that anti-SLAPP motions “are not designed or appropriate” for cases in which “any determination on the merits will patently require a deep dive into the evidence and the making of extensive findings of credibility.” [Footnotes omitted.]
28Similarly, in Hamer v. Jane Doe, 2024 ONCA 721 at para. 37, the Court of Appeal stated:
Because the assessment under s. 137.1 is meant to be a preliminary screening mechanism, courts must carefully guard against conflating the summary vetting procedure under s. 137.1 with a motion for summary judgment under r. 20 of the Rules of Civil Procedure, and ensure that they engage in only a limited weighing of the evidence for the specific aim of assessing the legislated criteria under s. 137.1. Contested issues of fact and credibility and competing inferences drawn from contested primary facts are not to be resolved on a s. 137.1 motion. As the Supreme Court instructed in Pointes, at para. 52, a motion judge deciding a s. 137.1 motion “should defer ultimate assessments of credibility and other questions requiring a deep dive into the evidence to a later stage, where judicial powers of inquiry are broader and pleadings are more developed.” [Citations omitted.]
29As a process that is intended to be efficient and inexpensive, and brought at an early stage of litigation, anti-SLAPP motions are meant to be decided on a limited evidentiary record with a limited weighing of evidence.
30In my view, these factors weigh against the motions to intervene. Both interveners seek to add more evidence to the anti-SLAPP motions. Both IJV and NCCM seek to make submissions on the meaning of anti-semitism and NCCM also seeks to make submissions on the impact of accusations of anti-semitism on the Muslim community. These proposed submissions effectively constitute a “deep dive” into factual issues that concern the proposed interveners. While they may provide some value, a close examination of these issues may not be appropriate or necessary in the anti-SLAPP context.
31Further, although the proposed interveners are interested – no doubt very interested – in the outcome of the anti-SLAPP motions, they do not have legal interests at stake in the motions or the action. Defamation actions are, by their nature, highly specific to the individual whose reputation may have been affected and specific as to what was said about them.
32IJV complains that it has been disparaged by some of the defendants in their cross-examinations who have alleged that IJV is anti-semitic. However, this does not provide IJV with a legal interest in the action. I have little context for why those statements were made or whether they would have any value in the case between Mr. Dattani and the defendants. IJV has not sued for libel over these statements, nor can it sue over what is said in a legal proceeding. IJV’s interest in protecting its reputation is very much collateral to the issues on these anti-SLAPP motions, and do not constitute the kind of “real, substantial, and identifiable interest” that would support its intervention in these cases at this time.
33In my view, therefore, IJV is not likely to be “adversely affected” by a judgment in these anti-SLAPP motions. Nor does IJV meet the test of having similar questions of law or fact in issue between it and any of the defendants.
34I am also not persuaded that either proposed intervener will provide an “important perspective distinct from the immediate parties.” Mr. Dattani, who consents to the interventions, is well-represented and has filed extensive evidence on many of the same issues that would be addressed by the proposed interveners. This is not to say that the proposed interveners will have exactly the same perspective; clearly there are differences in the experiences and perspectives of IJV, NCCM and Mr. Dattani himself. In the same vein, each of the proposed interveners is a well-recognized group that has an important perspective. While the defendants disparage IJV, the uncontradicted evidence on IJV’s motion is that it speaks for a considerable membership base and has been a participant for many years in the debates over issues on which it seeks to intervene in this case.
35However, in the context of these anti-SLAPP motions, permitting the interventions would augment the record and may extend the argument beyond the scope of the disputes before me. The issue of anti-semitism and its meaning, to the extent it must be addressed on these anti-SLAPP motions, is well addressed by the parties. It would be inconsistent with the goals of the anti-SLAPP regime to expand the issues and scope of submissions on what is to be a limited and expeditious procedure.
36Finally, the intervention motions are brought at the eleventh hour, after all materials have been exchanged and factums have been prepared. The evidence filed on the anti-SLAPP motions is extensive. In each motion, the parties have each filed multiple volumes of evidence. The factums on each side are extensive, with 100 pages of argument for each “side”. To introduce new evidence and additional arguments at this stage, which may be of limited use in resolving the issues that must be addressed on this motion, would be prejudicial and may cause injustice to the defendants, who will have little time to challenge or respond to it.
37Before concluding, I wish to address the argument made by the defendants that no intervention is permitted in an anti-SLAPP motion. Section 137.1(5) states that “[o]nce a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of.” Mr. Tighe submits that this prohibits interveners because allowing interveners constitutes steps taken in the proceeding.
38I disagree, for three reasons. First, s. 137.1(5) only restricts the parties from taking further steps. Potential intervenors are not parties. Second, there is a distinction between steps in the underlying proceeding and steps within the anti-SLAPP motion itself: The Catalyst Capital Group Inc. v. West Face Capital Inc., 2021 ONSC 125, at para. 202. An intervention application in the anti-SLAPP motion falls into the category of steps within the anti-SLAPP motion. Third, there have been intervenors in anti-SLAPP motions in the past: Rainbow Alliance Dryden et al. v. Webster, 2023 ONSC 7050. Section 137.1(5) also specifically applies to appeals, yet interventions in appeals have been permitted in many cases: see, e.g. 40 Days for Life v. Dietrich, 2023 ONCA 379; 2110120 Ontario Inc. v. Buttar, 2023 ONCA 539, 485 D.L.R. (4th) 551; Hansman v. Neufeld, 2023 SCC 14, [2023] 1 S.C.R. 519.
Conclusion on motions to intervene
39The motions to intervene are dismissed.
Order of argument
40In their case conference brief, the defendants submit that the plaintiff should make his submissions first. The defendants rely on the fact that the plaintiff has conceded that the proceeding arises from expression on a matter of public interest, which is all that the moving party must establish on an anti-SLAPP motion before the burden shifts to the plaintiff to meet the tests in subsection (4) of s. 137.1. The plaintiff objects to this procedure, noting that the defendants are the moving parties.
41Although the plaintiff may bear the persuasive burden on the matters in dispute, it is not unusual in such circumstances for the party that brings the proceeding to go first. One need only look at defamation cases where, at a trial, the plaintiff bears a very limited burden to establish that defamatory words have been spoken or published, which then shifts the burden to the defendant to establish one or more defences. Yet the plaintiff still calls its case first.
42In my view, the defendants should proceed first and address all the issues. The defendants are the moving parties. Their material and their submissions address all the issues, and were delivered first, to which the plaintiff responded. I see no reason to change that order at this stage.
Paul B. Schabas J.
Released: June 8, 2026