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Torts - SLAPP - Harm-Expression Balancing (7). Solmar Inc. v. Hall
In Solmar Inc. v. Hall (Ont CA, 2026) the Ontario Court of Appeal considered (and partially-allowed) a defendant's SLAPP-defamation appeal, here brought against a motion order that "dismissed the anti-SLAPP motion and allowed the defamation action to proceed".
The court considers the CJA s.137.1(4)(b) 'harm-expression balance':C. The weighing under s. 137.1(4)(b) - Balancing
[111] Under s. 137.1(4)(b), Mr. Marotta and Solmar were required to satisfy the motion judge that “there are grounds to believe …. that “the harm likely to be or have been suffered by [them] as a result of [Mr. Hall’s] expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.”
[112] The Supreme Court has described this weighing as “the core of the analysis”: Hansman, at para. 58; Pointes, at para. 53. Even when a plaintiff shows grounds to believe the proceeding has substantial merit and the defendant has no valid defence, “it remains vulnerable to summary dismissal as a result of the public interest weighing exercise..., which provides courts with a robust backstop to protect freedom of expression”: Hansman, at para 58, citing Pointes, at para. 53.
[113] Although general damages are presumed in defamation law, the presumption cannot establish that the harm is “serious” for purposes of s. 137.1(4): Hansman, at para. 67.
[114] Even where the extent of harm suffered by the plaintiff is serious, there must also be some evidence that enables the judge to infer a causal link between the defendant’s expression and the harm suffered: Hansman, at para. 68, citing Pointes, at para. 71. Inferring a causal link between the defendant’s expression and the harm suffered by the plaintiff becomes both more important, and more difficult where there may be multiple sources of harm.
a. Harm
[115] Mr. Hall submits that there is no evidence that the comments, which were online for less than eight days (a fact the motion judge failed to mention), caused Mr. Marotta and Solmar, who were already the subject of bad press, any harm, let alone any serious harm. There is ample evidence of other potential sources of harm to Mr. Marotta’s reputation, including extensive reports in mainstream media about controversies in Caledon and the cash gift to Councillor Burroughs.
[116] In Pointes, the Supreme Court recognized that “reputation is one of the most valuable assets a person or a business can possess”: at para. 69. The court explained that “harm is not limited to monetary harm, and neither type of harm is more important than the other.” Furthermore, harm is not “synonymous with the damages alleged.”
[117] At this stage, the motion judge was required to consider whether he could draw an inference of the likelihood of harm, and his harm assessment was to be “very preliminary”: 40 Days, at para. 65. As stressed in Pointes, although bald assertions of harm are not sufficient, “no definitive determination of harm or causation is required:” at para. 71.
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b. Public interest in protecting Mr. Hall’s expression
[126] Turning to the public interest in protecting Mr. Hall’s expression for purposes of s. 137.1(b), the question is not whether the subject of the post is one of public interest (i.e., the integrity of the development process). Rather, the focus, at this stage, is the particular expression, including its “quality” and “the motivation behind it”: Pointes, at para. 74. For example, in Pointes, at para. 75, citing 2018 ONCA 685, 142 OR (3d) 161, at para. 94, the SCC endorsed the following passage from this court’s reasons in the appeal below:Indeed, “a statement that contains deliberate falsehoods [or] gratuitous personal attacks...may still be an expression that relates to a matter of public interest. However, the public interest in protecting that speech will be less than would have been the case had the same message been delivered without the lies [or] vitriol”…. [Citations omitted.] [127] Here, the motion judge found that although “community debate over the merits of a development proposal is certainly a form of expression with great value”, the problem here was “the way that subject matter has been addressed”. He noted that “[i]t is one thing to oppose a development project; it is quite another thing to engage in false narratives about the developer’s supposed long history of corruption and intimidation such that town staff and councillors fear supporting it.”
[128] He concluded that the public interest in the particular speech did not weigh heavily:[60] There is, of course, legitimate public interest in expression that addresses real estate development and local development applications. But that interest does not weigh heavily on the ledger where the expression, as here, takes the form of serious, unsubstantiated accusations against a developer and city councillors rather than an actual critique of a development policy or plan. Where the impugned expression is composed almost entirely of gratuitous slurs, the balance inevitably tips in the Plaintiff’s favour. [129] On appeal, Mr. Hall does not submit that his comments have public interest value for purposes of s. 137(4)(b). Instead, Mr. Hall challenges the motion judge’s treatment of SLAPP indicia.
c. SLAPP Indicia
[130] The court may consider whether the hallmarks or indicia of a classic SLAPP are present in conducting the weighing under s. 137.1(4)(b). In Marcellin, the court spoke to this issue, at para. 111:Conducting the weighing under s. 137.1(4)(b) is an “open-ended” exercise that requires the court “to scrutinize what is really going on in the particular case” and to consider all relevant factors: Pointes Protection, at paras. 79-81. Whether the hallmarks or indicia of a classic SLAPP suit are present bears on the public interest weighing exercise under s. 137.1(4)(b), including such factors as whether the plaintiff has a history of using litigation or the threat of litigation to silence critics, a financial or power imbalance that strongly favours the plaintiff, a punitive or retributory purpose animating the action, and minimal or nominal damages suffered by the plaintiff: Pointes Protection, at para. 78. [Emphasis added.] [131] On appeal, Mr. Hall submits that four indicia of a SLAPP are present here: (1) Mr. Marotta has a history of pursuing and threatening litigation (including issuing a libel notice to a local newspaper); (2) there is a clear financial and power imbalance between Mr. Hall and Mr. Marotta and Solmar; (3) there is evidence of retributory intent (an expressed intention to sue even if Mr. Hall withdrew the post); and (4) and the absence of harm. In addition, there is a clear risk of a chilling effect on speech.
[132] Fundamentally, the question for a judge on a s. 137.1 motion is “what is really going on”: Pointes, at para. 81. In answering that, the hallmarks or indicia of a SLAPP may be relevant although they are, by no means, meant as a checklist to be ticked off in every case. Absent a palpable and overriding error, it is not for this court to engage in a rebalancing.
[133] Here, the motion judge found: (1) an equal playing field, at least from a litigation perspective; (2) little evidence to suggest that the lawsuit was vengeful or retributory; and (3) a likelihood of serious harm. And, earlier in his reasons, the motion judge noted the concession by Mr. Marotta’s counsel that Mr. Marotta is or has been engaged in other litigation.
[134] The motion judge found that “what was really going on” was that Mr. Marotta was seeking to address the tarnishing of his business reputation to preserve future objectivity among NOTL councillors in assessing his development proposals. In the motion judge’s view, there was “little in the record” that pointed to the lawsuit being “vengeful and retributory”.
[135] As for whether there was a power imbalance favouring Mr. Marotta and Solmar, the motion judge noted that there was “no real evidence about the disparity of wealth between the parties.” On the one hand, Mr. Marotta is “a successful developer”, whereas Mr. Hall “is a retiree who has owned three businesses and who resides in an affluent neighbourhood in NOTL – the very privileged residential life that he is out to protect in his Facebook attack on [Mr. Marotta].” In his view, “[n]othing in the record suggests that the two parties do not exist on an equal playing field in the litigation sense of that term.”
[136] Mr. Hall submits that the motion judge committed a palpable and overriding error in finding that “there is no real evidence about the disparity of wealth between the parties” and inferring that Mr. Hall has similar wealth.
[137] I agree that, on this record, there is a basis to say that there is a clear disparity in wealth between Mr. Marotta and Solmar, on the one hand, and Mr. Hall, on the other.
[138] On Mr. Marotta’s own evidence, he is very successful. For instance, in his affidavit, he detailed successful projects in NOTL, including a 130-acre winery, a large subdivision, another townhouse community, an upscale restaurant, and a second winery that is in its final stages of development. In addition, he detailed future projects in NOTL aside from his plan to build a 129-room luxury hotel on the Parliament Oak site. And he details his successful ventures in other parts of southern Ontario and the millions he has donated to charitable causes. In cross-examination, he acknowledged that two years previously his companies sold land in Caledon for $500 million.
[139] On the other side of the ledger, the evidence is that Mr. Hall owned three businesses, including a publishing business that published a single issue, and a corporate team-building consulting business that he runs part-time in retirement. There is nothing in the record about the third business, a jewellery business that Mr. Hall operated after completing high school.
[140] On this record, although there are no figures at this stage (no “real evidence” in the words of the motion judge), the evidence that is available at this screening stage indicates a disparity in wealth, even if the exact degree of the disparity is not known. That said, there is no evidence to suggest that Mr. Hall is without sufficient financial means for litigation purposes.
[141] In my view, even accepting the motion judge made a palpable and overriding error in finding an equal playing field, I am not persuaded there is a basis to interfere with his conclusion that “what is really going on” is that Mr. Marotta is seeking to vindicate a legitimate concern about reputational harm in the face of gratuitous personal attacks. The motion judge’s finding about the absence of bad faith is entitled to deference. And, as I have already explained, I would not interfere with the motion judge’s finding on harm. Although the motion judge did not expressly speak to other litigation in this part of his reasons, he made mention of it earlier in his reasons. Ultimately, the motion judge’s take on “what is really going on” was for him to make and I would defer to it.
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