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Municipal - Councils. Volpe v. Wong-Tam
In Volpe v. Wong-Tam (Ont CA, 2023) the Court of Appeal considered a plaintiff's appeal from a successful SLAPP defendant's dismissal motion [under CJA 137.1], brought in response to the defendants being sued for defamation and related torts for bringing an municipal motion to stop advertising with the appellant's newspaper.
In these quotes the court considers a challenge to the CJA SLAPP regime under s.2(b) of the Charter ['freedom of expression']:Section 2(b) of the Charter of Rights and Freedoms
[37] The appellants argued that the Notice of Motion itself (which the appellants keep analytically distinct from the amended motion that was passed by City Council) was legally defective in that by introducing the motion to City Council Wong-Tam and Ainslie breached the appellants’ rights to freedom of expression under s. 2(b) of the Charter. The appellants thus characterized the Notice of Motion itself as a nullity, and the act of introducing it as an illegality. Although the appellants did not seek any declaratory relief, they argued that the illegality of the Notice of Motion – and the respondents’ awareness of its illegality – provided a foundation for their non-defamation tort claims (misfeasance in public office, inducing breach of contract, and wrongful interference with economic relations). As well, the illegality of the Notice of Motion was said to undermine the defences to both the defamation and non-defamation torts, and factor in the final assessment of the overall proportionality of the action.
[38] The appellants did not provide the court with any authority establishing that bringing a motion to city council for a vote is government action to which the Charter applies. Nor did they construct an argument from first principles of s. 32 jurisprudence to provide a basis for that conclusion.
[39] The appellants have thus failed to satisfy their burden of establishing that any Charter right is in issue in this litigation. The City of Toronto is not a defendant, there is no government entity against whom the appellants seek relief, and as explained below, the appellants have not met their onus of establishing that the respondent trustees and councillors, as individuals who hold public offices, owe any Charter duty to them.
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