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Torts - SLAPP - Public Interest Threshold (3). Coulson v. Ojha
In Coulson v. Ojha (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal, here brought in the context of a settlement of an OMB proceeding where the counterclaim purportedly advanced CJA s.137.1 SLAPP 'public interest' issues:[8] The motion judge dismissed the motion at the first stage of the s. 137.1 analysis, finding that the appellants’ “expression”, as defined in that section, related to the interactions between the appellants and the respondent as private, neighbouring landowners. The motion judge held that a contextual review of the pleadings and the record did not support the conclusion that the expression related to a matter of public interest; rather, that they were made in the context of the appellants’ main goal of ensuring that the tree preservation plan was in place and that their trees were protected, “interests that were not specifically part of the larger public concerns surrounding this development.” The threshold not having been met under s. 137.1(3), the motion judge did not proceed to the analysis under s. 137.1(4).
[9] The heart of the appellants’ argument on appeal is that the motion judge erred in her determination that the expression of the appellants did not “relate to” matters of public interest. The appellants stress that the threshold is low, that the concept of public interest is to be given a large and liberal interpretation, and that the burden at the first stage of the analysis is not intended to be onerous. They emphasize that the expression(s) under consideration need not exclusively relate to the public interest and may relate to more than one matter: Ontario College of Teachers v. Bouragba, 2019 ONCA 1028, at paras. 31-33, leave to appeal refused, [2020] S.C.C.A. No. 254, citing 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, 142 O.R. (3d) 161, at para. 65, (“Pointes Protection (ONCA)”) aff’d, 2020 SCC 22, [2020] 2 S.C.R. 587 (“Pointes Protection (SCC)”).
[10] The appellants assert that in referring to the appellants’ “goals”, the motion judge erred in assessing their “motivations,” which is expressly not part of the analysis at the threshold stage: Pointes Protection (ONCA), at paras. 65, 94; Bouragba, at para. 19. Further, they argue that in several paragraphs the motion judge in fact confirmed that certain aspects of the alleged expressions were in the public interest and that this contradicts her ultimate conclusion on the motion.
[11] We do not accept these submissions.
[12] While the determination of what constitutes the public interest is a question of law reviewable on a standard of correctness, whether a particular expression relates to a matter of public interest attracts a deferential standard of review, absent an extricable question of law: Pointes Protection (SCC), at para. 97; Echelon Environmental Inc. v. Glassdoor Inc., 2022 ONCA 391, at para. 6, leave to appeal requested but application for leave discontinued, [2022] S.C.C.A. No. 274; 2110120 Ontario Inc. v. Buttar, 2023 ONCA 539, 485 D.L.R. (4th) 551, at para. 35, leave to appeal refused, [2023] S.C.C.A. No. 432.
[13] The motion judge correctly identified the applicable law to be applied under s. 137.1(3), in the manner outlined by the Supreme Court in the leading decision, Pointes Protection. She undertook a thorough and detailed contextual review of the pleadings and the record. She reviewed each of the expressions alleged by the respondent to be in breach of the Minutes. She fairly and reasonably concluded that, understood in its context, what the impugned expressions were “really about” were private matters between adjacent landowners, in particular, the protection of the appellants’ private property interests: see Echelon, at para. 5. The motion judge distinguished the facts from Pointes Protection, and we concur in that distinction, on this record.
[14] The motion judge recognized in her decision that certain aspects of the development of the retirement home would be matters of public interest. She stated, for example, that “[w]ith certainty, the public has an interest in the development of a retirement home within this community, especially a publicly funded development” and that “environmental and aesthetic impact of tree removal is most certainly a topic of public interest and debate.” Elsewhere she commented, “[t]here is always a public interest in ensuring that erection of barriers such as a retaining wall in an area of parking that will be accessible to residents and visitors be constructed safely and in compliance with Ontario Building Code requirements”. . Gill v. Maciver
In Gill v. Maciver (Ont CA, 2024) the Court of Appeal considered (and dismissed) an appeal from a defendant-successful SLAPP s.137.1 motion, here in yet another COVID vaccination dispute - this on Twitter.
In this quote the court affirms that COVID vaccination is a matter of 'public interest', here for SLAPP CJA 137.1 purposes:[29] The motion judge found that the impugned tweets by Picard, Weeks and Picazo all related to matters of significant public interest, namely, the development of effective treatments for COVID-19, whether a vaccine is needed, and whether HCQ is an appropriate treatment for COVID-19.
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[34] The motion judge further found that there was an intense public interest in protecting the expression of these three defendants on these issues. If the appellant’s claim against them were allowed to proceed, it could well have a chilling effect, deterring journalists and other members of the public from engaging in public discourse about potential misinformation on matters of public health. In fact, the motion judge found that the appellant’s allegations appear to be part of a “larger tactical campaign in opposition to COVID-19 public health measures, designed to benefit from the publicity of the claim to promote public health and policy views and to silence those who express views contrary to those of the Plaintiffs”. . Chaudhary v. Shadid
In Chaudhary v. Shadid (Ont CA, 2023) the Court of Appeal considered a SLAPP appeal, in these quotes focussing on CJA 137.1(3) ['public interest threshold']:(1) A Matter of “Public Interest”
[8] The appellants submits that the motion judge erred in characterizing the content of the Post. Instead of relying upon what the respondent said he intended in his affidavit, the motion judge should have looked at the words themselves and considered what a reasonable person would have understood them to mean. In other words, the motion judge erred by not engaging in an objective assessment.
[9] We see no error in the motion judge’s approach under this branch of the test. Relying on Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 84, the motion judge rightly held that there is no qualitative assessment of the expression at this stage. She interpreted the words in context. As she said, at para. 39:Interpreted broadly, the Post raises concerns regarding the management of funds raised for a charitable purpose. This is a matter of public interest. I find that some segment of the community, including the Community and those who made donations to First PTI Canada, New PTI Canada or at the Dam Fundraising Event, would have a genuine interest in receiving information on the subject. [10] The appellants contend that this would mean that any theft of charitable funds would qualify as a matter of public interest. We are not tasked with testing this general proposition, although it may indeed be true. Nonetheless, we see no error in the trial judge’s characterization of the matter in the circumstances of this case, particularly in the communities which she identified – it is a matter of public interest. . 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 the initial 'public interest threshold' [under CJA 137.1], which makes an important clarification as to what 'public interest' applies to:[45] The appellants argue that the motion judge erred in characterizing the expression as arising from a matter of public interest, because he failed to address the appellants’ argument that the substance of the Notice of Motion – its very purpose - was to censor or suppress the expression of the media, and censorship of the media is not in the public interest. Similarly, the tweets, the Joint Letter, and the press conference statements – all of which either prefigured or supported the Notice of Motion – were related to censorship of the media and not in the public interest.
[46] This argument is misconceived. The text of s. 137.1(3) references expression “that relates to a matter of public interest”, not “what is in the public interest”. Although the concept of public interest is normative – requiring the application of evaluative criteria - the question to be addressed at this stage is primarily descriptive: the section directs a judge to identify the subject matter of the expression and determine whether it relates to a matter of public interest. The motion judge is not to evaluate whether the expression in question makes a positive contribution to the community: Pointes, at para. 28. . Zeppa v. Rea
In Zeppa v. Rea (Ont CA, 2023) the Court of Appeal allowed an appeal of a denied CJA 137.1(3) [SLAPP dismissal motion by the defendant] where a property developer sued a town councillour for defamation and additional related torts, focussing on the defendant's complaint to the police about the respondent.
In these quotes the court considered the threshold 'public interest expression' [CJA 137.1(3)] test:C. ANALYSIS
[16] The motion judge’s conclusion regarding expressions on matters of public interest involves a question of law and thus is to be reviewed on a standard of correctness: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 2. S.C.R. 587, at para. 97.
[17] In my view, the approach adopted by the motion judge took a much too narrow view of what constitutes expression on matters of public interest. This approach not only fails to recognize the fundamental rationale for s. 137.1, but it is also inconsistent with the prevailing case law on the subject.
[18] On the latter point, Côté J. held in Pointes, at para. 24, that “a broad and liberal interpretation is warranted at the s. 137.1(3) stage of the framework”. She continued, at para. 28:This is important, as it is not legally relevant whether the expression is desirable or deleterious, valuable or vexatious, or whether it helps or hampers the public interest — there is no qualitative assessment of the expression at this stage. The question is only whether the expression pertains to any matter of public interest, defined broadly. The legislative background confirms that this burden is purposefully not an onerous one. [emphasis added] [19] There is an obvious public interest in members of the public feeling free to report conduct which is of concern to the police. Members of the public must not feel that, in doing so, they may be exposed to litigation, especially litigation of the size commenced by the respondent against the appellant. The appellant felt threatened by the actions of the respondent and she reported her concerns to the police. The fact that the police determined that the actions complained of did not rise to the level of criminal threatening does not change the public interest in ensuring that such concerns are reported to the police and reviewed by them.
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[20] The motion judge also erred in engaging in an evaluation of the expression by saying that “it is questionable who was harassing whom”. That observation has nothing to do with whether the appellant’s report to the police was an expression on a matter of public interest. Even if the appellant had been the harassing party, it does not change the public interest in having incidents reported to the authorities.
[21] The motion judge also found that “the mere importance of supporting complaints to the authorities” could not meet the threshold because, if it did, “every instance of a person suing for false reporting” would be subject to s. 137.1.
[22] Both of these comments reflect the same error. They conflate the stages of the test to be applied under s. 137.1. At the s. 137.1(3) stage, the issue is solely whether the expression relates to a matter of public interest. It is at the s. 137.1(4) stage that the court looks at the merits of the claim, the existence of potential defences, and the relative harm between the expression on the one hand and permitting the proceeding to advance on the other hand. This distinction is important because, among other things, the burden shifts from the defendant to the plaintiff when the analysis moves from ss. (3) to ss. (4).
[23] The motion judge repeated this same error when she addressed the claim for misfeasance in public office. While finding that, on its face, the respondent’s claim in this respect arose from the appellant’s expression relating to a matter of public interest, the motion judge went on to consider whether that expression should be constrained in order to promote what the motion judge saw as the interest of ensuring public officials were held to account. Indeed, the motion judge said, at para. 14:If we left the analysis there, [the appellant], and many other public officials whose jobs are inherently related to matters of public interest would too easily meet the basic threshold of section 137.1 and quickly stifle challenges to the exercise of their authority under the guise of protected expression. [24] The genesis for the motion judge’s concern about stifling challenges to public officials exercising their authority is unclear. While she appears to be particularly concerned with holding public officials accountable for their actions, I note that a claim for damages of the type advanced by the respondent is not the only remedy that is available for misconduct by a public official. In any event, a finding that the conduct of the appellant in this case represents expression on a matter of public interest does not determine that issue. Any concern about stifling challenges to public authorities is properly addressed at the s. 137.1(4) stage, especially when considering the relative harms described in s. 137.1(4)(b): Hansman v. Neufeld, 2023 SCC 14, 481 D.L.R. (4th) 218, at para. 76.
[25] In my view, the expression at issue, properly considered, is an expression on a matter of public interest. That conclusion is consistent with giving the language of expression relating to a matter of public interest a “generous and expansive” interpretation: Pointes at para. 30. As I said earlier, there is a public interest in people feeling free to report matters of concern to the police. This point is well made by Sharpe J.A. in Cusson v. Quan, 2007 ONCA 771, 87 O.R. (3d) 241 where he said, at para. 39:Employment references, business and credit reports, and complaints to police, regulatory bodies or public authorities are classic examples of occasions of qualified privilege. The rationale for qualified privilege is that on such occasions, "no matter how harsh, hasty, untrue, or libellous the publication . . . the amount of public inconvenience from the restriction of freedom of speech or writing would far outbalance that arising from the infliction of private injury" [citation omitted]. [26] It was more recently reiterated in Hobbs v. Warner, 2021 BCCA 290, where Goepel J.A. said, at para. 89:The judge held there was significant public interest in protecting expressions to law enforcement agencies to assist with the detection and prevention of crimes. There is no doubt that, as a general proposition, bona fide police complaints are public expressions of great importance. [27] The motion judge’s conclusion, at para. 12, that a finding that complaints to authorities always relate to matters of public interest would set the bar “too low” for the purposes of s. 137.1(3) fails to reflect the importance attached to those expressions. Indeed, the proper concern, as expressed in Pointes, at para. 30, is that the bar should not be set too high for the onus under s. 137.1(3) to be met.
[28] There are other issues that are raised by the claims in this action. They include whether the respondent can advance claims that would appear, on their face, to belong to City Park; whether the appellant can be found to owe a fiduciary duty or a duty of good faith to the respondent (or any other member of the public); whether the actions of the appellant could constitute interference with economic relations or whether they could constitute champerty and maintenance. None of those issues, and others, are properly considered at this stage of the proceedings. They are properly considered when the factors in s. 137.1(4) are evaluated, especially the factor of substantial merit. On that latter factor, there must be a basis in the record and the law for finding that the underlying proceeding has substantial merit: Pointes at para. 39.
[29] The motion judge did not consider any of those factors. . 2110120 Ontario Inc. v. Buttar
In 2110120 Ontario Inc. v. Buttar (Ont CA, 2023) the Court of Appeal considers the SLAPP public expression 'threshold' [under CJA s.137.1(3)]:[32] As I will explain, I agree with the appellants that the motion judge erred by relying on factors that are irrelevant to the s. 137.1(3) analysis and by dismissing the anti-SLAPP motion at the threshold stage. In my view, the appellants have met their burden of establishing on a balance of probabilities that the Action arose from an expression made by the appellants that relates to a matter of public interest. ...
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(1) The motion judge erred in law in concluding that the appellants had not met their burden under s. 137.1(3)
[36] The appellants contend that the motion judge erred in law in his determination that they had not met their burden under s. 137.1(3) in three ways: first, by considering the appellants’ motive, the merit of their expression, and the manner in which it was made; second, in failing to consider the subject matter of the expression as a whole and scrutinizing portions of the expression in isolation; and third, in suggesting that their actions did not constitute expressions as defined under s. 137.1(2), such that some causes of action, such as the trespass claim, were not proceedings that “arose from” an expression that relates to a matter of public interest.
[37] The respondents argue that the motion judge did not err in his s. 137.1(3) analysis of whether the appellants’ expressions related to a matter of public interest. The respondents emphasize the Supreme Court’s guidance in Pointes Protection, at para. 29, that a matter does not relate to the public interest merely by making reference to something that is of public interest. In the respondents’ view, the expression at issue arose from a private dispute about compensation and is analogous to the expression in Sokoloff, Grist, and Echelon Environmental Inc. v. Glassdoor Inc., 2022 ONCA 391, all cases in which this court upheld dismissals of anti-SLAPP motions at the s. 137.1(3) stage. Further, the respondents argue that the motion judge was entitled to conclude that the actions of the appellants, such as their trespass on personal property and the “phone zap”, were not “expressions” within the meaning of s. 137.1(2).
[38] In my view, the appellants have met their burden under s. 137.1(3) to establish, on a balance of probabilities, that the Action arose from expressions relating to a matter of public interest. As I will explain, while expressions about some private disputes may well not fall under s. 137.1, the motion judge’s conclusion that the Action did not arise from an expression relating to a matter of public interest was based on factors that, although relevant to s. 137.1(4), could not properly inform his analysis under s. 137.1(3).
[39] Section 137.1(3) sets out a “threshold burden”: Pointes Protection, at para. 21. It requires the moving party to establish, on a balance of probabilities, that the proceeding arises from an expression that “relates to a matter of public interest”:On a motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest. [40] “Expression” is broadly defined as “any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity”: s. 137.1(2).
[41] It is not necessary for the purpose of the s. 137.1(3) analysis in this case to determine which, if any, of the appellants’ actions, as opposed to their oral and written statements, constituted an “expression”. All of the actions, whether or not they are considered an expression, form part of the context in which the expression occurred. It is sufficient, and there is no question that, the Action was precipitated by the allegedly defamatory and harassing statements made verbally, in print and on social media asserting “wage theft” and other improprieties against Cargo County and its principals. The statements were found to be expressions, and this is not in issue. The key issue before the motion judge was whether such expressions related to a matter of public interest.
[42] There are several guiding principles in respect of s. 137.1(3) that have been articulated by the Supreme Court in Pointes Protection and in decisions of this court. Those relevant to this appeal can be summarized as follows:. The court should adopt a “broad and liberal” and “generous and expansive” approach to whether the expression relates to a matter of public interest: Pointes Protection, at paras. 26, 30. The burden on the moving party is not onerous: Pointes Protection, at para. 28.
. The interpretation of “public interest” must be informed by the purpose of the anti-SLAPP legislation, which is to safeguard the fundamental value that is public participation in democracy, and there is necessarily a normative aspect to what is “genuinely” a matter of public interest: Pointes Protection, at para. 30; Sokoloff, at para. 18.
. Ultimately the inquiry is a contextual one that is fundamentally asking what the expression is really about: Pointes Protection, at para. 30.
. In considering the entire context of the expression, “it is not legally relevant whether the expression is desirable or deleterious, valuable or vexatious, or whether it helps or hampers the public interest – there is no qualitative assessment of the expression at this stage”: Pointes Protection, at para. 28. The defendant’s “motive, merit and manner are irrelevant in determining whether [an] expression relates to a matter of public interest”: Pointes, at para. 65; Sokoloff, at para. 25. [43] As the point of departure, I note that this appeal is one of several anti-SLAPP cases that involve a dispute between private parties in respect of a monetary claim. One such case, relied on by the respondents, is this court’s decision in Sokoloff, involving a fee dispute with a lawyer.
[44] In Sokoloff the expression giving rise to the action consisted of the appellant’s standing outside the respondent’s law offices with placards proclaiming his views about the parties’ financial dispute. He claimed that he was owed money under a referral agreement. As here, the motion judge dismissed the anti-SLAPP motion after finding that the appellant failed to pass the s. 137.1(3) threshold. This court concluded that the motion judge had erred when he considered and criticized the way in which the appellant chose to express himself, and the motivation for the communication: at para. 21. It was irrelevant both that the appellant lacked decorum and was trying to embarrass the respondent, and that he professed to be indifferent to the public interest and admitted that he was only pursuing a personal claim.
[45] This court nonetheless dismissed the appeal. While Huscroft J.A. concluded that the motion judge had erred in considering the motive and manner of the expression, he had identified and applied other factors that were legally relevant to the conclusion that the s. 137.1(3) threshold had not been met. The appellant’s expression was about the parties’ private fee dispute, that did not relate to a matter of public interest simply because the dispute involved a lawyer who owed ethical obligations. As Huscroft J.A. observed, the appellant’s expression raised no “general concerns” about the ethical conduct of lawyers, “nor was it directed to anyone with an interest in the respondents’ conduct”: at para. 35.
[46] In the present case, the motion judge made errors similar to those at first instance in Sokoloff. Although he instructed himself on the need to disregard motive, in considering the context of the appellants’ expressions, his focus was nonetheless on their “motive, merit and manner” – the “why” and “how” of their expression – rather than on what it was about. The motion judge observed that the expressions were designed to deal with a collection dispute, and not to bring to the public’s attention matters of public interest, and that the goal of the expression was not to inform the public or truck drivers about Cargo County’s business practices, but to pressure and force Cargo County to disregard the ongoing legal process and to pay the appellants the entire amount claimed: at paras. 99-102. He also noted that the words “thief”, “theft” and “stolen” were unnecessary to describe a protest for unpaid wages, and that such words were defamatory, misleading, and deliberately intended to inflame the public and to force Cargo County to capitulate rather than follow the legal process: at para. 94. None of these considerations, however, are relevant to the analysis under s. 137.1(3).
[47] In the present case, the motion judge’s consideration of “what the expression was about” focused on and did not go beyond a consideration of the motives, merits and manner of the appellants’ expression, and the fact that the parties were engaged in a dispute about wages. He did not consider whether the expression, without regard to its qualitative features, related to a matter of public interest. This is in contrast to the same judge’s decision in Singh v. Sandhu, where he concluded that expressions by a driver and NSN about another trucking company and its principals, when considered in the full context, were clearly expressions on a matter of public interest, “of interest to other persons in similar situations, to the public and to the users of the Plaintiffs’ services”: at para. 84. The motion judge distinguished the two cases on the basis that Cargo County had paid the appellants and there was a legal process underway, while in Singh the driver had not been paid for several months despite demands, and that there was no attempt in Singh to circumvent any legal process: at paras. 84-85. These distinctions, however, that address the motives behind the expressions and their merits, are not material to the s. 137.1(3) analysis.
[48] In determining “what the expression was about”, and whether the expression relates to a matter of public interest, the court must consider the broader picture. An expression about a private dispute can nevertheless relate to a matter of public interest. Whether an “expression relates to a matter of public interest is determined by consideration of the particular expression in question, not the topic of that expression”: Echelon, at para. 11.
[49] In Nanda, this court allowed an appeal of the dismissal of an anti-SLAPP motion. The motion judge had dismissed the motion under s. 137.1(3) on the basis that the expression, by a member of a trade union, made disparaging, inflammatory and allegedly defamatory comments about the plaintiff to other local union members to get those other members not to vote for the plaintiff. This court concluded that it was wrong for the motion judge to have focused on the manner in which the expression was made and its purpose. Rather, “what the expression was about” was in fact allegations of corruption and misconduct by a candidate for the office of president of a union. This was an expression of public interest, whether or not it was true, that was sufficient to meet the requirements of s. 137.1(3).
[50] Similarly, in the present case, the expressions were about the business practices of Cargo County and its principals – how they were treating their drivers and whether they were engaging in unfair, exploitative or illegal labour practices. Objectively considered, there was a public interest in the business practices of the respondents, and by extension other businesses engaging vulnerable workers. While the motion judge was correct to consider that the involvement of NSN and the WAC did not transform the private dispute into a matter of public interest, the involvement of these organizations was part of the overall context of the appellants’ expression.
[51] Whether or not the expression itself was accurate, and irrespective of the methods employed in its communication, the expression was about unfair labour practices. Although the genesis of the expression in this case was a wage dispute involving the appellants and Cargo County, and the expression pointed to the appellants’ claims and targeted the respondents, when considered in the broader context, the expression went beyond the resolution of a purely private dispute and raised issues about fair labour practices in respect of vulnerable workers, such that it related to a matter of public interest. This distinguishes the result in Sokoloff and some other cases involving private disputes, where s. 137.1(3) was not met. See, for example, Dent-X Canada v. Houde, 2022 ONCA 414 (simply referring to a matter of public interest – delivery times during the pandemic – did not mean that a single Facebook post by an unhappy customer raised an issue of public interest); Grist (a pleading referring to unfair competition was not of significance to anyone other than the parties involved and the institutions established to resolve their disputes); and Echelon (a website posting by an employee against a former employer was not of significance to the employer company’s customers or other members of the public). . Mondal v. Kirkconnell
In Mondal v. Kirkconnell (Ont CA, 2023) the Court of Appeal considered appeals from two SLAPP motions, both of which resulted in the dismissal of the actions. In this quote the court considers the 'public interest threshold' [at CJA s.137.1(3)]:[40] The quality of the expression in these communications is not relevant to the threshold question – whether that expression related to a matter of public interest: Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, 153 O.R. (3d) 20, at paras. 24-25. ...
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