COURT OF APPEAL FOR ONTARIO
CITATION: Volpe v. Wong-Tam, 2023 ONCA 680
DATE: 20231018
DOCKET: C70833
Fairburn A.C.J.O. MacPherson and Miller JJ.A.
BETWEEN
Joseph Volpe and M.T.E.C. Consultants Ltd.
Plaintiffs/Responding Parties
(Appellants)
and
Kristyn Wong-Tam, Paul Ainslie, Yahoo Media Group Inc.,
Elizabeth Di Filippo, FreshDaily Inc.,
Media Central Corporation Inc., Enzo DiMatteo,
Maria Rizzo, Norm Di Pasquale,
Markus de Domenico, Ida Li Preti
Defendants/Moving Parties
(Respondents)
Paul Slansky, for the appellants
Kevin A. McGivney, Natalie D. Kolos, and Benjamin B. Fuhrmann, for the respondents Kristyn Wong-Tam and Paul Ainslie
Andrew W. MacDonald and Emma K. Romano, for the respondents Yahoo Media Group Inc. and Elizabeth Di Filippo
Jeremy Opolsky, T. Ryan Lax and Adrienne Oake, for the respondent Maria Rizzo
Tim Gleason and Amani Rauff, for the respondents Norman Di Pasquale, Markus de Domenico and Ida Li Preti
Heard: April 5, 2023
On appeal from the order of Justice Benjamin T. Glustein of the Superior Court of Justice, dated July 11, 2022, with reasons reported at 2022 ONSC 3106 and 2022 ONSC 4071.
B.W. Miller J.A.:
OVERVIEW
[1] The appellant Volpe is the publisher of Corriere Canadese, a newspaper that has been sharply critical of some trustees of the Toronto Catholic District School Board (the “TCDSB") who promoted policies that Volpe believes undermine Roman Catholic teaching on sexuality and gender. In criticizing the policies of the TCDSB, Volpe engaged in personal attacks on the trustees who championed them. After Volpe used highly pejorative language to object to the TCDSB providing a link on its website to an LGBTQ2S+ resource website which itself linked to sexually explicit material, the respondent councillors – supported by the respondent trustees – took action to have the City of Toronto stop advertising in Corriere Canadese. The appellants sued the respondents for defamation and other causes of action. The respondents moved successfully to have the action dismissed under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43. This is an appeal from the motion judge’s order dismissing the action.
[2] Section 137.1 seeks to prevent an abuse of process known as “strategic lawsuits against public participation” (“SLAPPs”): the practice of initiating lawsuits not to vindicate bona fide claims, but rather to deter a party from expressing a position on a matter of public interest or otherwise participating in public affairs. As this court recently explained in Mondal v. Kirkconnell, 2023 ONCA 523, at para. 29, “s. 137.1 is designed to allow defendants to have strategic or abusive actions – typically defamation proceedings – dismissed at an early stage in order to protect the public interest in freedom of expression.”
[3] For the reasons that follow, I would dismiss the appeal. All parties on both sides of this litigation were engaged in political speech on matters of public interest – matters that require robust and intelligent debate to arrive at sound resolution – and the appellants were unable to satisfy their burden of demonstrating grounds to believe that the respondents’ fair comment defence would fail. The viability of the fair comment defence is fatal to the action.
BACKGROUND
(1) The Relevant Facts
[4] In early 2020, the trustees of the TCDSB began debating a series of policies addressing the pastoral care of students and families within the TCDSB who dissented from Roman Catholic teaching about sexuality. These policies included measures intended to redress instances of bullying of students who identified as LGBTQ2S+, such as the proclamation of Pride Month, the raising of the Pride Flag outside TCDSB schools and the Board Administrative Office during Pride Month, and the revision of the TCDSB Code of Conduct to include “gender identity, gender expression, family status and marital status” as protected characteristics.
[5] The trustees believed the policies in question to be fully consistent with Roman Catholic doctrine, adopting a theological argument provided by the report of the 2SLGBTQ+ Advisory Committee Recommendation for the Proclamation of Pride Month:
Within the Catholic Church, the month of June is dedicated to the Sacred Heart of Jesus. The Sacred Heart of Jesus reminds us and encourages us to always be inclusive of all persons, particularly those who may have or who are experiencing any kind of injustice, exclusion, marginalization, oppression, or discrimination. In the TCDSB, we are to be welcoming communities of everyone, as Jesus was, and as we are all called to be.
That June also be proclaimed Pride Month implores us to be compassionate, welcoming, and inclusive of marginalized people, including 2SLGBTQ+, as an example of our faith in Action.
[6] Joe Volpe, a former Cabinet Minister and Member of Parliament, is the publisher of the Canadian-Italian newspaper Corriere Canadese. Volpe wrote a series of articles sharply critical of TCDSB’s proposed policies – and those who advocated for them - on the basis that the policies were inconsistent with Roman Catholic doctrine related to human sexuality. He argued that adopting these policies violated the trustees’ duties and impeded the ability of students to understand and benefit from the Church’s teaching about human sexuality. Volpe stated that he agreed with the trustees’ objective of redressing bullying and discrimination against LGBTQ2S+ students. Nevertheless, he insisted that the means used to achieve this pastoral care could not include statements or actions that conveyed the message that non-marital sexual acts or transgender identities were consistent with Roman Catholic doctrine. He argued that students who objected to being taught Roman Catholic doctrine would be better served by attending non-Catholic schools more aligned with their beliefs. Volpe’s language was intemperate and often profoundly insulting to the respondent trustees and those to whom he referred as “LGBT activists” or “the LGBT”.
[7] The respondent trustees were aggrieved by the articles – both personally and on behalf of the TCDSB community. In their evidence, each stated that Volpe’s articles were not only unfair to them but harmful to the students and families the trustees sought to protect. Some of the trustees agreed with Volpe on first principles: that according to Roman Catholic doctrine, all sexual acts outside of heterosexual marriage are sinful, and that Roman Catholic anthropology is inconsistent with the concept of transgender identities. But all maintained that the policies they had promoted were not only consistent with Roman Catholic doctrine as they understood it but were a manifestation of their duty as Roman Catholics to safeguard, accept, and welcome marginalized groups.
[8] In January 2021, Volpe noticed a link on the TCDSB website to the website of an LGBTQ2S+ charity called LGBT YouthLine. The site is a peer‑based resource for youth who identify as LGBTQ2S+ and provides counselling services and other resources. Volpe, browsing YouthLine, followed a link embedded in it to a third-party site containing sexually explicit material, offering sex toys for sale, and providing advice on how to engage in the sale of sexual services. Volpe was alarmed that this content was accessible through the TCDSB and was particularly alarmed that this material was accessible to those in younger grades. He wrote an article published on January 8, 2021 (the “YouthLine Article”) in which he described the material he saw and denounced both the TCDSB and YouthLine:
Briefly, [YouthLine] is a smut site which, under cover of defending “diversity and human rights”, as demanded by the Human Rights Commission, promotes the purchase and sale of porno paraphernalia for sexual activities typically reserved for “red light districts” under the cover of darkness.
[YouthLine] is a recruitment site operated by a self-professed LGBTQ+ umbrella organization to attract children that operates province wide.
[9] Following the publication of the YouthLine article, the TCDSB removed the link to LGBT YouthLine site. The TCDSB faced an immediate backlash from LGBT YouthLine supporters on social media and LGBT YouthLine demanded that the link be restored.
[10] The respondents Yahoo Media Group and Elizabeth Di Filippo (the “Yahoo Respondents”) reported on the removal of the YouthLine link, referring to the backlash from YouthLine and its supporters. The article referred to Volpe as a person “with well documented anti-LGBTQ+ views”.
[11] The TCDSB reinstated the link on January 13, 2021.
[12] The respondent Wong-Tam, a City of Toronto Councillor and long-time supporter of LGBT YouthLine, was one of the parties who responded on social media to the YouthLine Article. Wong-Tam posted three tweets on January 11, 2021 in defence of LGBT YouthLine and attacking Volpe and Corriere Canadese:
Volpe’s recent article labels the @LGBTYouthLine a “pornographic” “smut site.” He goes after progressive TCDSB trustees brave enough to stand up to his homophobic and transphobic ramblings.
@LGBTYouthLine is a youth-led organization, whose mandate is to provide peer support to queer youth, including Catholic ones. They provide life-affirming support and help #LGBTQ2S+ kids feel safe in homes, communities and schools. Volpe strives to do the exact opposite.
The @cityoftoronto should not be spending any public dollars advertising in any media that promotes homophobia, transphobia or any other form of discrimination and hate. Same goes for government grants. Time to cut them off.
[13] On January 14, 2021, the day after the link to LGBT YouthLine was reinstated, Wong-Tam issued a fourth tweet:
The vitriolic attacks from Joe Volpe and Corriere Canadese on TCDSB trustees supporting human rights must be called out. Governments should not be advertising or providing grants to media such as @CCanadese who is actively promoting hate against LGBTQ2S+ students & families.
[14] Two weeks later, on January 28, 2021, Wong-Tam introduced a Notice of Motion before City Council entitled “Cancelling City of Toronto Advertising in Corriere Canadese”, which was seconded by the respondent Counsellor Ainslie. It was, in effect, a request that the City of Toronto censure Volpe and Corriere Canadese and cease advertising in Corriere Canadese:
The publisher of Corriere Canadese has been publishing articles targeting the [TCDSB], its Trustees for their support of LGBTQ2S+ students and their families. The articles are portrayed as factual news when they are opinion pieces that are discriminatory towards a charter protected minority group.
[15] It further stated, “(i)t is our opinion that Corriere Canadese has:
• attacked [TCDSB] trustees De Domenico, Di Pasquale, Li Preti and Rizzo on numerous occasions, calling them ‘thugs’, a ‘rat pack’, and ‘gangsters’;
• defamed YouthLine, a youth-led charity that affirms and supports LGBTQ2S+ youth [and] that provides life-saving peer support and educational resources; and
• dismissed our Human Rights Code”. [citations to Corriere Canadese articles omitted]
[16] The Notice of Motion continued:
The City’s advertising dollars should not be invested in a community newspaper that espouses discrimination and harassment against:
• the LGBTQ2S+ community or any other charter protected minority group
• elected officials [and]
• a public school board.
[17] The Notice of Motion included the following recommendations:
1. City Council direct the City Manager to immediately cease all City of Toronto paid advertisements in the Corriere Canadese following the reports of the printing and distribution of homophobic and transphobic articles about the Toronto Catholic District School Board, its Trustees and its LGBTQ2S+ students.
2. City Council direct the City Manager to inform the Corriere Canadese that it must sign and comply with the City of Toronto’s Human Rights and Anti‑Harassment/Discrimination Policies if it is to become a vendor again in the future.
[18] The respondent trustees wrote to the mayor and City Council on February 1, 2021 to express their support for the motion (the “Joint Letter”). They criticized Corriere Canadese for “spread[ing] homophobia [and] transphobia”.
[19] On March 9, 2021, Councillor Wong-Tam led a virtual press conference to bring public attention to the motion. The press conference included Councillor Ainslie and three of the respondent trustees. Those participating made several statements that the appellants later alleged were defamatory. These included statements by Wong-Tam calling on the appellants “[t]o cease the attacks, to cease the bullying, [and] to cease the harassment”. They also included statements by Councillor Ainslie that Corriere Canadese’s writings were contrary to students’ rights to “have access to washrooms, to enter the school, to receive the same education as everyone else unhindered and unfettered and not to feel threatened.”
[20] The respondent trustees Rizzo and Di Pasquale made similar remarks that the appellants regard as defamatory. Trustee Rizzo’s statements included the following:
I cannot stand back and witness homophobic and transphobic hatred to our LGBTQ2S+ staff, students and families. I cannot in good conscience turn the other cheek from the evidence of evil that is so clear and compelling.
…
I firmly reject the claims that religious beliefs and denominational rights can be invoked as a legitimate justification for hatred and discrimination. You cannot use scripture and denominational rights to spew bigotry, contempt and malice.
[21] Trustee Di Pasquale’s statements were to a similar effect:
When those newspapers start printing articles that discriminate and attack our most marginalized students, it has a direct impact on our most marginalized students’ mental health and well-being. These articles have the effect of intimidating LGBTQ2S students and the staff who support them, while enforcing a discriminatory message that doesn’t align with the views of our Italian communities in Toronto.
[22] On March 10, 2021, Toronto City Council passed an amended version of Wong-Tam’s motion to censure Corriere Canadese. City Council did not pass the requested declaration directing the city manager to cease advertising with Corriere Canadese. The revised motion, as passed, instead required that:
1. City Council reaffirm its policies against hateful speech and its support for the City of Toronto’s Lesbian, Gay, Bisexual, Transgender, Queer and Two-Spirit+ communities against discrimination and harassment.
2. City Council express its displeasure to the Corriere Canadese following reports of the printing and distribution of homophobic and transphobic articles about the Toronto Catholic District School Board, its Trustees and Lesbian, Gay, Bisexual, Transgender, Queer and Two-Spirit+ families.
3. City Council direct the City Manager to inform all media vendors, including the Corriere Canadese, that they must sign and comply with the City of Toronto's Human Rights and Anti-Harassment/Discrimination Policies if the City is to purchase advertising space in the future, as outlined in the supplementary report (March 5, 2021) from the Chief Communications Officer.
[23] Volpe and Corriere Canadese thereafter signed the requested declaration, maintaining that their publications in fact complied with the Human Rights and Anti‑Harassment/Discrimination Policies. The appellants alleged in this action that the City ceased purchasing advertising from Corriere Canadese because of the respondents’ defamatory statements. The appellants commenced an action seeking over $30 million in damages and the respondents brought motions under s. 137.1 of the Courts of Justice Act to dismiss the Action as a SLAPP suit.
(2) The Statutory Provisions
[24] The relevant provisions of s. 137.1 of the Courts of Justice Act are as follows:
Order to dismiss
(3) On 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.
No dismissal
(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,
(a) there are grounds to believe that,
(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the proceeding, and
(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
(3) The Motion Judge’s Reasons
[25] The motion judge granted the respondents’ anti-SLAPP motions and dismissed the action on the following basis.
Step 1: The Expressions Related to a Matter of Public Interest
[26] The motion judge concluded that all of the impugned statements were communications that constituted expressions under s. 137.1(3) and that all of the expressions related to a matter of public interest. The matters of public interest, as characterized by the motion judge, included: (1) the decision of the TCDSB to remove and then reinstate the link to LGBT YouthLine; (2) the debate as to whether taxpayer funds should be used for government advertisements placed in media which expressed the views espoused in the Corriere Canadese articles; and (3) the responsibilities of trustees and councillors to represent their constituents and ensure an inclusive and safe school environment.
Step 2: There Were Grounds to Believe That the Proceeding Had Substantial Merit and That There Were No Valid Defences
[27] The motion judge held that the appellants had established, as required by s. 137.1(4)(a)(i), that there were grounds to believe that the defamation claim has substantial merit: “Expressing the view that a plaintiff is homophobic, transphobic, or anti-LGBTQ2S+ would tend to lower the [appellants’] reputation in the eyes of a reasonable person.” However, the motion judge held that the appellants had not succeeded in establishing grounds to believe that their other causes of action (misfeasance in public office, inducing breach of contract, and wrongful interreference with economic relations) had substantial merit.
[28] Turning to defences under the s. 137.1(4)(a)(ii) analysis, the motion judge held that the appellants had failed to establish that the following defences did not have “a real prospect of success”:
• fair comment (all respondents);
• qualified privilege (city councillors and trustees);
• justification (city councillors, Li Preti and Yahoo Defendants);
• statutory immunity (city councillors); and
• responsible communication (Yahoo Defendants).
[29] Reviewing the appellants’ statements in the Corriere Canadese articles, the motion judge found that they “support[ed] a basis in fact for the comment that the plaintiffs were homophobic, transphobic, and anti-LGBTQ2S+”, sufficient to support the defence of fair comment. He found there was no evidence of subjective malice on the part of any of the respondents.
[30] With respect to the remaining defences, the motion judge held that the appellants had “failed to meet their burden under s. 137.1(4)(a)(ii)” of establishing that “the invalidity of any of the defences (let alone all the defences…) ‘tend[ed] to weigh more in favour of the [appellants]’” (emphasis in original).
Step 3: The Harm Suffered Was Not Sufficiently Serious That the Public Interest in Permitting the Action to Continue Outweighed the Public Interest in Protecting the Impugned Statements
[31] As the motion judge noted, having concluded that the appellants failed at the merits hurdle, it was unnecessary for him to proceed to the final weighing stage. Nevertheless, he provided that analysis. He found that under s. 137.1(4)(b), the appellants had not established that the harm suffered from the impugned statements was sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the respondents’ expression. He stressed the importance of the respondents’ expression “seeking to ensure LGBTQ2S+ inclusion in the TCDSB, the [proper] use of public taxpayer funds for City advertising, and the safety of LGBTQ2S+ students in the TCDSB.” He faulted the appellants for not providing any evidence that Corriere Canadese had suffered loss of advertising revenue, or that there was a causal connection between the alleged defamation and any actual harm suffered. He concluded that the impugned speech “lies at the core of s. 2(b) protection”; that public officials such as municipal councillors and school trustees “must be afforded the freedom of speech necessary to properly state, persuade, explain, and justify their positions to the public”; and that there is a “strong public interest in protecting the LGBTQ2S+ community from discrimination”. With respect to the Yahoo defendants, the motion judge found that “it is critical for media outlets to be able to provide the views of all parties involved in debates on matters of public interest”.
THE GROUNDS OF APPEAL
[32] Although the appellants enumerated a lengthy list of grounds of appeal in their Notice of Appeal and factum, they narrowed these grounds at the appeal hearing to the following:
1. The motion judge erred in his s. 137.1 analysis by failing to consider that the Notice of Motion brought by the City Councillors violated s. 2(b) of the Canadian Charter of Rights and Freedoms;
2. The motion judge erred in principle by not accepting the proposition that the appellants’ statements were protected by s. 93 of the Constitution Act, 1867 and could not constitute discriminatory speech;
3. The motion judge erred in his assessment of the respondents’ defences;
4. The motion judge erred in the weighing analysis by
i. failing to find the appellants’ suffered serious harm; and
ii. failing to actually weigh the harm to the appellants against the harm to the respondents.
5. The motion judge erred by awarding costs on a full indemnity basis in the absence of indicia of a SLAPP.
ANALYSIS
[33] As noted earlier, citing Mondal at para. 29, “s. 137.1 is designed to allow defendants to have strategic or abusive actions – typically defamation proceedings – dismissed at an early stage in order to protect the public interest in freedom of expression.”
[34] Once the moving party has established that “the proceeding arises from an expression made by the person that relates to a matter of public interest”, the burden shifts to the plaintiff to satisfy the motion judge that “there are grounds to believe”: (1) the proceeding has substantial merit, and (2) the moving party has no valid defence. If the plaintiff clears the merits-based hurdle, the analysis moves to the public interest hurdle under s. 137.1(4)(b).
[35] In 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at paras. 37, 51, and 63, the Supreme Court directed that the bar must not be set too high at the merits-based hurdle, otherwise the weighing stage (the public interest analysis) will never be reached. The merits‑based hurdle is simply one part of an overall assessment of whether the action is proportionate to the harm alleged to have been suffered. The merits-based hurdle is not to be treated as a summary judgment motion.
(1) The Preliminary Constitutional Arguments
[36] Before considering the arguments at each step of the s. 137.1 analysis, it will be efficient to first address the appellants’ overarching constitutional arguments, which the court dismissed after oral argument, rather than addressing them in each discrete step where they were said to apply.
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.
Section 93 of the Constitution Act, 1867
[40] The appellants also advanced a cluster of arguments related to the proposition that their speech could not be accurately characterized as discriminatory because it was an articulation of Roman Catholic doctrine, which is protected by s. 93 of the Constitution Act, 1867. This argument was also rejected at the conclusion of the appellants’ oral submissions.
[41] There is no merit to this argument. Section 93 entrenches the rights of Roman Catholic separate school supporters to Roman Catholic separate schools that hold and teach Roman Catholic doctrine, and to have their children receive a Roman Catholic education based on that doctrine: Reference re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1 S.C.R. 1148, para. 58-60, per Wilson J. The rights protected by s. 93 are not engaged by the matters in dispute between the parties.
[42] Furthermore, the appellants mischaracterize the motion judge’s findings. The motion judge found that the appellants are free to “raise concerns about policies concerning issues affecting the LGBTQ2S+ community in the TCDSB. [They] can criticize the conduct of trustees (and councillors) who support such policies.” The problem with the appellants’ articles was not that they took a position adverse to that of LGBTQ2S+ advocates with respect to Roman Catholic doctrine and education about sexuality. The problem was that they “used derogatory and prejudicial language” to do so, using stereotypes of “predation, pedophilia, and socially destructive behaviour.” This was the aspect of the appellants’ speech that exposed them to the complaint that they expressed discriminatory statements.
[43] The appellants’ constitutional arguments thus failed, and accordingly so do those non-defamation causes of action (misfeasance in public office and inducing breach of contract) which, on appeal, are entirely dependent on the success of the constitutional arguments.
(2) Section 137.1 Arguments
[44] I turn now to the appellants’ s. 137.1 arguments. The only argument with any force concerns the motion judge’s weighing of the public interest. However, given my conclusions on the merits hurdle of the analysis, the appellants’ s. 137.1 arguments fail.
Section 137.1(3): The Proceeding Arises From Expression That Relates to a Matter of Public Interest
[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.
Section 137.1(4): The Merits and Weighing Analysis
[47] Under s. 137.1(4), the Court must determine whether: (a) there are grounds to believe (i) the proceeding has substantial merit, and (ii) there are no valid defences; and (b) the harm likely to have been suffered as a result of the expressions is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression.
Section 137.1(4)(a): The Appellants Fail to Cross the Merits-Based Hurdle
[48] The merits-based inquiry in s. 137.1(4)(a) is a preliminary assessment of both the claim advanced and the defences to it. It is intended to provide an overall assessment of the prospect of success: Pointes, at para. 59.
[49] The motion judge found that the appellants satisfied their burden of establishing that “there [were] grounds to believe” that the defamation claim had substantial merit. He found that the sting of the Impugned Statements was that the appellants held homophobic, transphobic, and anti-LGBTQ2S+ views, and that such words would tend to lower the appellants’ reputation in the eyes of a reasonable person.
[50] That finding is not in issue on appeal. Although the parties do not agree on the meaning of the words homophobic and transphobic, it is important to note that, contrary to the appellants’ submissions, the respondents did not argue that it is inherently homophobic, transphobic, or anti-LGBTQ2S+ to disagree with policies such as raising the Pride Flag or declaring Pride Month, acknowledging that respectful and civil debate of these issues is possible.
[51] The appellants argue that the motion judge erred in finding that they had not established grounds to believe the non-defamation causes of action had substantial merit. However, except for the claim for interference with economic relations, all of the errors alleged are dependent on the constitutional arguments rejected above. Accordingly, this argument fails as well.
[52] With respect to interference with economic relations, the basis for the appeal is that the motion judge made a palpable and overriding error in finding there was no evidence that any of the respondents intended to injure the appellants’ economic interests. The motion judge instead found that the intention of the councillors and trustees was to protect the interests of their constituents and the integrity of the City in its expenditure of funds.
[53] This inference was available to the motion judge on the evidence adduced on the motion and I would not disturb it. The respondent trustees did not want the City to continue placing advertising in Corriere and Wong-Tam clearly communicated the belief that no other government should do so either (“time to cut them off”). However, these actions were consistent with these respondents’ stated rationale that they believed it harmful to their constituents to see government advertising alongside newspaper articles they believed to be advocating for discrimination. That economic harm to the appellants might have been a foreseeable result does not entail that causing economic harm was their intention.
[54] All that remains, then, is to consider the defences advanced with respect to the defamation action: justification, fair comment, qualified privilege, statutory immunity, and responsible communication. I conclude that the motion judge did not make any reversible error with respect to the fair comment defence, which was asserted by each of the respondents. That conclusion is sufficient to dispose of the appeal in its entirety and it is unnecessary to address the remaining defences.
[55] The appellants accept that the motion judge set out the elements of the fair comment defence accurately. Although the appellants mounted attacks based on each of the elements of the defence, these are for the most part meritless and do not require further comment. The appellants’ central argument is that the motion judge misunderstood the articles that the respondents identify as the factual basis for their claims that the appellants hold homophobic, transphobic, and anti‑LGBTQ2S+ beliefs and that constituted an attack on LGBTQ2S+ students.
[56] The appellants’ argument is that the articles cannot plausibly be read as addressing – much less attacking – LGBTQ2S+ students, families, and teachers. Rather, they are entirely focused on the actions of the trustees and thus are not discriminatory against anyone. More specifically, the argument is that the articles address the obligation of Roman Catholic schools to teach (i) the monogamous, procreative and marital nature of sexual acts according to Roman Catholic doctrine, and (ii) the binary and immutable nature of sex and the conceptual impossibility of misalignment of one’s gender with one’s natal sex. The appellants argued that the articles acknowledge that there are students within the TCDSB who are not Catholic, who dissent from Catholic teaching on sexuality, or who are part of families who do not accept this teaching, and that these students need to be accommodated. Had the motion judge understood this, the appellants argued, he would have found reason to believe the fair comment defence would fail.
[57] I do not agree that the motion judge misunderstood the articles.
[58] There was undoubtedly disagreement between the appellants and the respondent trustees about what Catholic doctrine requires or permits in an educational setting. But as the motion judge found, that debate is merely the context in which the appellants published the specific statements that the respondents claim justify their remarks. When the appellants made statements connecting persons who identify as LGBTQ2S+ with pedophilia and moral depravity, they could not then complain when other parties called them homophobic, and chose not to do business with them on that basis. Appealing to the bona fide nature of the larger debate does not immunize specific statements from scrutiny.
Section 137.1(4)(b): Comments on the Weighing Analysis
[59] The appellants’ failure at the merits stage means that the appeal fails. It is therefore unnecessary to address the weighing stage. Nevertheless, although I agree with the motion judge’s conclusion at the weighing stage, his analysis is in some respects mistaken, and it will be useful to explain why.
a. Evidence of Damage
[60] The motion judge found that there was no evidence that any of the appellants’ advertising contracts were cancelled or breached because of the impugned statements, or that Corriere Canadese’s advertising revenue had decreased. He also rejected Volpe’s “self-serving statement” that Volpe had enjoyed a high reputation that was damaged by the respondents’ expressions.
[61] However, on Wong-Tam’s evidence, prior to the Notice of Motion, the City purchased advertising from Corriere Canadese on a “buy-as-we-need” basis. The appellants’ evidence is that the City then stopped doing business with the newspaper. The respondents did not seriously dispute this fact and the respondent councillors could easily have produced evidence to contradict it if such evidence existed. The point of the Notice of Motion was to get the City of Toronto to stop advertising with Corriere: it was “time to cut them off.” For the purposes of a s. 137.1 motion, this is sufficient evidence that the appellants had suffered damage. It was unnecessary at that point in the litigation for the appellants to provide a full damages brief quantifying the loss of revenue or proving that they had not been compensated from other sources, and the motion judge erred in holding otherwise.
b. The Weight Given to the Respondents’ Expression
[62] There is merit to the appellants’ argument that the motion judge erred in the weighing analysis by treating all of the impugned statements as equivalent. There were important differences between the statements, and simply because some of the respondents’ expressions were worth protecting does not necessarily mean they all were. However, because of the conclusion I have drawn on the merits of the action, it is not necessary to do that analysis here.
(3) Appeal of the Costs Order
[63] Applying the statutory presumption under s. 137.1(7), the motion judge awarded costs on a full indemnity basis to all of the respondents except for Rizzo, who was represented by pro bono counsel and received costs on a substantial indemnity basis.
[64] The appellants argue that they defeated the statutory presumption. In determining whether the presumption is appropriate, a motion judge should consider whether the lawsuit bore indicia of a SLAPP: Levant v. DeMelle, 2022 ONCA 79, 82 C.C.L.T. (4th) 48, at para. 82. The only indicium of a SLAPP articulated by the motion judge was his finding that the appellants’ damages could only have been nominal, and the appellants argue that this finding was incorrect.
[65] I agree that this action does not have strong indicia of a SLAPP, but I conclude that the appellants have nevertheless failed to rebut the presumption that costs are warranted. The relative power dynamics in this case were such that – with very little effort and at no expense – the respondents were able to leverage tools at their disposal that may have caused economic harm to the appellants. This is not a case of a large and powerful corporation attacking vulnerable individuals, but rather a journalist and newspaper seeking vindication against holders of government offices. The competing interests of vindicating reputation and protecting expression may have been more finely balanced than the motion judge allowed.
[66] Nevertheless, this action was misconceived. The backdrop to it is an important political debate that must be permitted to run. Neither the appellants nor the respondents are prevented from fully engaging in that debate. Section 137.1 exists to keep political speech flowing and not to allow litigation to stop it in doubtful cases. That this action should have been stopped with a s. 137.1 motion was not a close call and there is no basis to interfere with the motion judge’s award of costs.
DISPOSITION
[67] I would dismiss the appeal. Each respondent group (trustees, councillors, and Yahoo respondents) is entitled to costs of the appeal of $10,000, inclusive of HST and disbursements.
Released: October 18, 2023 “J.M.F.”
“B.W. Miller J.A.”
“I agree. Fairburn A.C.J.O.”
“I agree. J.C. MacPherson J.A.”