COURT OF APPEAL FOR ONTARIO
CITATION: Burjoski v. Waterloo Region District School Board, 2024 ONCA 811
DATE: 20241105
DOCKET: COA-23-CV-1382
Zarnett, Monahan and Pomerance JJ.A.
BETWEEN
Carolyn Burjoski
Plaintiff/Respondent
and
Waterloo Region District School Board and Scott Piatkowski
Defendants/Appellants
Kevin A. McGivney and Natalie D. Kolos, for the appellants
Justin Heimpel, for the respondent
Douglas Montgomery and Braxton Murphy, for the intervener, Egale Canada
Hatim Kheir and James Manson, for the intervener, Our Duty Canada
Heard: September 11, 2024
On appeal from the order of Justice James A. Ramsay of the Superior Court of Justice, dated November 22, 2023, with reasons reported at 2023 ONSC 6528.
Monahan and Pomerance JJ.A.:
OVERVIEW
[1] The respondent, Carolyn Burjoski, began a presentation at a public meeting of the appellant Waterloo Region District School Board (the “Board”) on January 17, 2022, in which she raised concerns regarding certain books available in Board libraries which discuss gender identity and expression. Shortly after the respondent started her remarks, the Board Chair, the appellant Scott Piatkowski (the “Board Chair”) stopped the presentation asserting that her comments may violate the Human Rights Code, R.S.O. 1990, c. H.19. Subsequently, the Board Chair made comments in the media characterizing what the respondent had said and explaining why he had stopped her presentation, and the Board removed the video of the presentation from its website while also explaining why it had done so.
[2] The respondent commenced a proceeding seeking damages for defamation and intentional infliction of mental suffering, arising from statements made by the Board Chair and the Board regarding her presentation. The appellants then brought a motion to dismiss the proceeding pursuant to s. 137.1 of the Courts of Justice Act, RSO 1990, c. C.43 (the “CJA”). Motions brought under s. 137.1 are known as anti-SLAPP motions,[1] designed to discourage strategic litigation that has the effect of unduly limiting expression on matters of public interest.
[3] While the motion judge dismissed the respondent’s claim for intentional infliction of mental suffering, he allowed the defamation claim to proceed on the basis that the respondent had shown that there were grounds to believe that the claim had substantial merit and that the appellants had no valid defence to the claim, and the respondent had satisfied him that the public interest in permitting the proceeding to continue outweighed the public interest in protecting the appellants’ expression.
[4] The appellants do not appeal the motion judge’s finding that the respondent’s defamation claim has substantial merit, except in respect of his finding that the court had jurisdiction over the respondent’s claim. Apart from the issue of jurisdiction, the appellants argue that the motion judge erred by failing to find that they have one or more valid defences to the claim, and by finding that the harm likely to be or having been suffered by the respondent is sufficiently serious that the public interest in allowing her defamation proceeding to continue outweighs the public interest in protecting their expression. The appellants also seek leave to appeal the motion judge’s costs order.
[5] The issues raised on this appeal are challenging for a number of reasons, not the least of which is that the respondent’s presentation to the Board, as well as the impugned comments made by the appellants regarding the presentation, relate to an extremely vulnerable and marginalized group in Canadian society, transgender persons. As the Supreme Court emphasized in Hansman v. Neufeld, 2023 SCC 14, 481 D.L.R. (4th) 218, at para. 85, transgender persons occupy a “unique position of disadvantage in our society”. They are stereotyped as diseased or confused simply because they identify as transgender and have faced discrimination in many facets of Canadian society. Despite some modest gains in recent years, trans persons “continue to live their lives facing ‘disadvantage, prejudice, stereotyping and vulnerability’” (Hansman, at para. 89, citing C.F. v. Director of Vital Statistics (Alta.), 2014 ABQB 237, 587 A.R. 332, at para. 58).
[6] While we acknowledge the extreme vulnerability and disadvantage of transgender persons, we nevertheless dismiss the appeal from the motion judge’s order permitting the respondent’s defamation proceeding to continue. As we explain in some detail, a motion brought under s. 137.1 is not a minitrial on the merits of a plaintiff’s claim. Rather, it is a screening mechanism designed to enable the courts to quickly and at low cost weed out abusive legal proceedings without compromising the existing protections against harm to a person’s reputation from false and damaging statements. It is intended to shut down plaintiffs who file abusive claims that have the effect of silencing opposing views, rather than to vindicate an apparently legitimate claim.
[7] As set out below, we find that the motion judge did in fact err in one aspect of his legal analysis under s. 137.1. We nevertheless dismiss the appeal from his decision permitting the respondent’s claim to go ahead since it is not the kind of proceeding that “comes within the legislature’s contemplation of one deserving to be summarily dismissed at an early stage”: Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 172. In bringing her claim, the respondent was not preventing the Board from expressing views or enforcing policies aimed at addressing the disadvantage experienced by transgender persons. Rather, the respondent seeks redress for serious harm to her reputation that she alleges she has suffered as a result of comments made by the Board and the Board Chair, comments which she claims are untrue.
[8] Our mandate on this appeal is not to make a final determination as to whether the statements by the Board and the Board Chair were true or untrue, and whether the statements actually caused the harm which the respondent says she suffered as a result. Our role is much more limited. We merely assess whether there is sufficient merit to the respondent’s claim such that it should be permitted to continue to a hearing on the merits. As we explain below, we find that the respondent’s claim surpasses this modest threshold and would dismiss the appeal.
BACKGROUND FACTS
(1) The January 17, 2022 board meeting
[9] The respondent is a retired teacher with the Board. The Board Chair is an elected trustee who served as Chair of the Board from December 2021 until November 2022, including at the time material to this matter.
[10] On January 17, 2022, the respondent attended a public meeting of a Board committee. She had been approved to make a 10-minute delegation to discuss the Board’s library collection review. Early in her presentation, she began criticizing some books available in school libraries which discuss gender identity and expression. The Board Chair cautioned her not to say “anything that would violate the Human Rights Code.” The respondent continued her presentation and referenced a youth book character named “Shane” who was born female and now identifies as male. The respondent described her concern with this book as follows:
Shane takes puberty blockers and is now excited to take testosterone. The doctor states that this hormone mixture will leave Shane infertile in the future. Shane’s response is, “It’s cool”. A very typical adolescent response. This book is misleading because it does not take into account how Shane might feel later in life about being infertile. The book makes very serious medical interventions seem like an easy cure for emotional and social distress.
[11] At this point the Board Chair ended the presentation, stating that “the Ontario Human Rights Code includes gender identity and gender expression as prohibited grounds for discrimination, and I am concerned that your comments are in violation of that.”
[12] Certain Board members challenged the decision of the Board Chair to end the respondent’s presentation, but his decision was upheld by a majority vote of the Board.
(2) Media interviews by Board Chair
[13] On January 18, 2022, the Board Chair was interviewed by a local CTV news affiliate. In that interview, the Board Chair stated that some of the comments made by the respondent at the Board meeting “were frankly, transphobic that were questioning the right to exist of trans people.”
[14] On January 19, 2022, the Board Chair gave an interview to 570 News, a local radio station. The radio interviewer asked the Board Chair why he had shut down the respondent’s presentation. He responded as follows:
This delegate violated the policy. They, they were, they violated the Ontario Human Rights Code. I needed to caution them at first because they appeared to be headed in a direction that was problematic. Uh, when I did that, they indicated that they were going to continue and I gave them another chance. But they essentially doubled down and uh, when they did that, I did make the ruling that they were out of order and that their presentation was finished.
[15] The radio interviewer asked the Board Chair how the respondent had violated the Human Rights Code. He replied as follows:
Well, I am not going to repeat anything that [the respondent] said and I am not going to respond to anything that [the respondent] said. I don’t wish to give those comments oxygen. But the Ontario Human Rights Code … was … amended most recently to add gender expression and gender identity as prohibited grounds for discrimination. And this delegate was speaking about transgender people in a way that was disrespectful, that would cause them to be attacked, um, and I really needed to ensure that they did not continue. Our bylaws in general talk about being respectful and courteous and this delegate was not respectful or courteous towards transgender people.
[16] Later, in response to the radio interviewer’s question as to whether other members of the Board supported the decision to halt the respondent’s presentation, the Board Chair stated that “we have a responsibility as a school board to not allow hate into our board meetings, and I’m quite satisfied that this was the right decision.”
[17] The Board’s normal practice was to post video recordings of its meetings on its website. However, the recording of the January 17, 2022 meeting was removed from the Board website shortly after the meeting. The radio interviewer asked the Board Chair why the Board did so, and whether this prevented members of the public from having an understanding of what had actually occurred at the meeting.
[18] The Board Chair replied that he had no role in the decision to remove the video from the Board website. He agreed that transparency is important. He stated that he had asked that the video of the meeting be reposted on the website with some sort of disclaimer or trigger warning to “let people know about the problematic content.”
[19] However, the video of the meeting was not in fact reposted on the Board website. Instead, the Board issued a statement expressing “deep regret for any harm caused to the transgender community” by the January 17, 2022 meeting, and explaining that the video of the meeting was not posted because of concerns over potential violations of the Human Rights Code and the harm that could affect students, staff and communities in the Waterloo Region.
(3) Legal proceedings
[20] On April 14, 2022, the respondent issued a statement of claim seeking damages from the appellants for defamation and intentional infliction of mental or emotional suffering. The respondent also applied for judicial review of the Board’s decision to uphold the decision of the Board Chair to stop the respondent’s presentation on January 17, 2022.
[21] The appellants filed a statement of defence and subsequently brought a motion to have the respondent’s claim dismissed in accordance with s. 137.1 of the CJA. The appellants’ s. 137.1 motion was heard on November 22, 2023. At the conclusion of the oral hearing, the motion judge dismissed the motion from the bench and, as described in more detail below, the following day issued a brief endorsement setting out the reasons for his disposition.
[22] On November 29, 2023, the Divisional Court dismissed the respondent’s application for judicial review of the Board Decision upholding the ruling of the Board Chair: Burjoski v. Waterloo Region District School Board, 2023 ONSC 6506, leave to appeal refused, COA-23-OM-0345 (March 28, 2024). The Divisional Court found that the Board had acted reasonably in halting the presentation, and that the decision to do so “sought to achieve, and did achieve, a reasonable balance between [the respondent’s] Charter right to free expression and the objectives of its Bylaws, its Equity and Inclusion Policy, [and] the Education Act.” The Divisional Court accepted, at para. 33, that by shutting down the presentation, the Board “prioritized the maintenance of a safe and inclusive school environment for its community members and was in accordance with the requirements of reasonableness as set out in Vavilov.” The Divisional Court noted that a high degree of deference is owed to the elected trustees of the Board who are accountable to their community and well-versed in the goals of the education system and the boundaries of proper debate at Board meetings. The Divisional Court further pointed out that the Board Chair did not find that the respondent had actually breached the Human Rights Code but, rather, had merely referenced the statute and expressed concerns that the respondent’s comments were becoming problematic.
THE MOTION JUDGE’S REASONS
[23] The motion judge described what had occurred at the January 17, 2022 meeting, the comments made by the Board Chair in subsequent media interviews and the statement issued by the Board explaining why the video of the meeting was not posted on the Board website.
[24] He found that, contrary to statements made by the Board Chair, the respondent had not disparaged trans persons or denied their right to exist. Although the respondent did express doubt that gender affirmation surgery was appropriate for everyone who presented with “emotional and social distress”, the motion judge found that the respondent’s statements did not breach the Human Rights Code since the Code does not prohibit public discussion of issues relating to minors and trans persons.
[25] The motion judge further found that members of the public could not check for themselves what the respondent had said because the Board had removed the recording of the meeting from its website, although members of the public might have found the video on the CTV website.
[26] Turning to the provisions of s. 137.1, the motion judge found that the Board Chair’s statements related to a matter of public interest, since “[w]hy the Board Chair silenced a member of the public was a matter of public interest.”
[27] The motion judge also found that the respondent’s claims had substantial merit since the appellants’ statements were defamatory. The motion judge noted that the appellants had accused the respondent of breaching the Human Rights Code, of questioning the right of trans persons to exist and of engaging in speech that included hate. He found that she did not do any of those things.
[28] The motion judge then turned to a consideration of whether there were reasonable grounds to believe that the appellants had no valid defence to the respondent’s claim.
[29] With respect to the defence of justification, the motion judge found that in view of the plain words used by the appellants, there were no reasonable grounds to believe that the defence of justification will succeed.
[30] With respect to the defence of fair comment, the motion judge noted that this defence requires the defendant to prove that the statement constituted comment, that it had a basis in true facts and that it concerned a matter of public interest. If the defendant establishes those elements, the defence will apply unless the plaintiff proves malice, which would include proving the defendant made the statement with reckless indifference as to its truth.
[31] The motion judge found that there was no prospect that the Board Chair would be able to prove that his statements had a basis in true facts since he had claimed that the respondent said things that she did not say. Further, by taking the video of the meeting off the website, the Board prevented members of the public from ascertaining the true facts. The motion judge further found that there was a ready inference that the Board Chair had acted with malice, or at least a reckless indifference for the truth. The motion judge reasoned that having made “an embarrassingly erroneous and arbitrary decision to silence a legitimate expression of opinion and [being] criticized for it”, the Board Chair tried to justify himself with the public by “assassinating the plaintiff’s character.”
[32] With respect to the defence of qualified privilege, the motion judge found that the Board Chair has a duty under the Education Act, R.S.O. 1990, c. E.2 to act as a spokesman for the Board, and that this may entitle him to assert qualified privilege. However, even assuming that the Board Chair could claim qualified privilege, this defence would be defeated by a showing of malice. The motion judge also distinguished the circumstances in this case from those in Hansman since here the Board Chair was defending himself rather than a disadvantaged group.
[33] The Board argued that as the respondent had still been employed by the board as a teacher in January 2022, her claim should have been brought before a labour arbitrator rather than the Superior Court. The motion judge disagreed, noting that the subject matter of her claim had nothing to do with the interpretation or application of the collective agreement, and the Board Chair did not purport to exercise discipline in stopping her presentation. He therefore found that the court had jurisdiction over the subject matter of the respondent’s claim.
[34] The motion judge concluded that the respondent’s claim for defamation had substantial merit and he had no reasonable grounds to believe that the appellants had a valid defence to the claim.
[35] However, he reached a different conclusion with respect to her claim for intentional infliction of mental suffering. Intent as opposed to negligence is required to make out this tort. The plaintiff is required to show that the alleged wrongdoer desires the consequences that follow, or that the consequences must be known by the alleged wrongdoer to be substantially certain to follow. The motion judge found that the inference that the Board Chair intended to cause a visible illness to the respondent, or that he knew that it was substantially certain to follow, was “too much of a stretch.” He therefore dismissed this part of the respondent’s claim.
[36] The motion judge offered brief reasons on the weighing exercise under s. 137.1(4)(b), consisting of the following three paragraphs:
[24] Finally, the harm allegedly suffered is serious enough that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the defendant’s expression. The media coverage went world-wide. The plaintiff alleges serious damage to the reputation that she spent decades establishing and emotional distress that led to physical harm.
[25] The purposes of section 137.1 are stated to be, among other things, to encourage individuals to express themselves on matters of public interest and to promote broad participation in debates on matters of public interest. Here it is not the plaintiff, but the defendant who seeks to discourage open discussion of matters of public interest.
[26] I find it regrettable that the defendant who is trying to shut down debate is an arm of the government. Regard for the historical and present plight of [trans persons], as articulated in paragraph 85 of Hansman, does not negate section 2(b) of the Charter. What happened here should not happen in a democratic society.
[37] With respect to costs, the motion judge noted that a successful plaintiff is not entitled to costs unless the judge determines that such an award is appropriate in the circumstances. He found that an award of partial indemnity costs in favour of the respondent in the amount of $30,000 was appropriate since she was the more successful party and the appellants had been attempting to discourage open discussion on matters of public interest, contrary to the purpose underlying the enactment of s. 137.1.
GROUNDS OF APPEAL
[38] The appellants do not appeal the motion judge’s finding that the respondent’s defamation claim has substantial merit, as required by s. 137.1(4)(a)(i), other than in respect of whether the Superior Court has jurisdiction over the claim.
[39] The appellants argue that the motion judge erred in the following respects:
1. by finding that the appellants had no valid defences to the defamation claim pursuant to s. 137.1(4)(a)(ii). In particular, the motion judge erred in finding that the defences of qualified privilege, fair comment and justification were not available to the appellants;
2. by failing to consider the public interest in protecting the appellants’ expression in the weighing analysis under s. 137.1(4)(b); and
3. by failing to apply the proper test when considering whether the court has jurisdiction over the subject matter of the respondent’s action.
[40] The appellants also seek leave to appeal the costs decision of the motion judge.
ANALYSIS
(1) Governing principles
[41] Section 137.1 of the CJA was intended to create an inexpensive and speedy screening mechanism to weed out abusive actions, typically defamation proceedings, that unduly limit expression on matters of public interest rather than seek redress for a bona fide claim. This new mechanism would allow courts to quickly identify and deal with such abusive lawsuits, minimizing the emotional and financial strain on defendants as well as the associated waste of court resources. At the same time, since s. 137.1 did not alter the substantive law of defamation, it would preserve the right of persons whose reputations had been wrongfully damaged to access the civil justice system to seek redress.
[42] The practical effect of the legislation appears to be rather different from what was originally anticipated. As Pepall J.A. observed in Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, 165 O.R. (3d) 753, at para. 35, leave to appeal refused, [2023] S.C.C.A. No. 172, s. 137.1 has spawned a plethora of complex and protracted procedural litigation that is “expensive, time-consuming and open to abuse”. The mandatory 60-day time limit for resolving s. 137.1 motions is routinely ignored and, rather than screening out obviously unmeritorious claims at an early stage, the proceedings typically involve “the entire trial being played out in advance.” (Park Lawn, at para. 35, citing Tamming v. Paterson, 2021 ONSC 8306, at para. 7, per Myers J.) While the Legislature’s intention in enacting s. 137.1 was to create a preliminary hurdle, “the process advanced in practice is more like a marathon.”
[43] Writing in February 2023, Pepall J.A. noted the fact that in the prior two years, the Court of Appeal had heard about 15 appeals of anti-SLAPP motion decisions. Yet this is the 16th anti-SLAPP appeal decided by this court in the approximately 20 months since Park Lawn was released, and the third in the past month alone.
[44] Commentators on anti-SLAPP litigation have increasingly drawn attention to the fact that anti-SLAPP motions are often complex, lengthy and expensive. Because of the high stakes involved, particularly for plaintiffs who risk having their action dismissed at a preliminary stage and having to pay full indemnity costs, most anti-SLAPP motions typically devolve into a detailed examination of the merits, including evidentiary disputes over proof of harm and causation. The fact that there is an automatic right of appeal even where the s. 137.1 motion has been dismissed, which would normally require leave given the interlocutory nature of such an order, adds to the costs and delays. Counsel involved in such litigation have suggested that in some cases anti-SLAPP litigation has proven more expensive and time consuming, both for plaintiffs and defendants, than defamation proceedings prior to the enactment of s. 137.1: see Hilary Young, “Canadian Anti-SLAPP Laws in Action” (2022) 100:2 Can. B. Rev. 186, at 215-21; Justin Safayeni, “Anti-SLAPP laws in Ontario: recent trends and lingering uncertainties” (7 May 2024), online (blog): <cfe.torontomu.ca> [perma.cc/HNA3-PBXP].
[45] In an effort to assist courts and litigants in realizing the original vision that gave rise to s. 137.1, the Supreme Court of Canada has provided helpful guidance in its seminal decisions in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587; Bent; and Hansman. That guidance has been amplified and supplemented by a number of this court’s recent decisions including, in particular, Mondal v. Kirkconnell, 2023 ONCA 523, 485 D.L.R. (4th) 90; Marcellin v. London (Police Services Board), 2024 ONCA 468; 40 Days for Life v. Dietrich, 2024 ONCA 599; and Hamer v. Doe, 2024 ONCA 721.
[46] Following from that guidance, we summarize the governing principles which are central to the disposition of this appeal and are key to ensuring that the remedy for the mischief that gave rise to the enactment of s. 137.1 is efficient and effective.
[47] These key governing principles are as follows:
a. As the jurisprudence of both the Supreme Court and this court has repeatedly emphasized, there are two equally important legislative purposes underlying the enactment of s. 137.1. The first is to protect free speech by screening out at an early stage obviously unmeritorious defamation claims that adversely affect debate and participation on matters of public interest. The second is to ensure that persons may nevertheless continue to seek redress for serious harm to their reputation resulting from defamatory statements. As Roberts J.A. put recently in Hamer, at paras. 33-36, s. 137.1 seeks to achieve “a delicate equilibrium” between these twin goals, enabling courts to “quickly identify and deal with strategic lawsuits, and ensure abusive litigation is stopped but legitimate action can continue”. See also Pointes, at para. 9; Bent, at para. 2.
b. The interpretation of s. 137.1 must be guided by the recognition that it is a screening mechanism, intended to be heard within 60 days of the notice of motion on a limited evidentiary record. Courts must carefully guard against conflating the screening procedure under s. 137.1 with a motion for summary judgment under r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Courts should therefore engage in “only a limited weighing of the evidence for the specific aim of assessing the legislative criteria under s.137.1”, such that “contested issues of fact and credibility and competing inferences drawn from contested facts are not to be resolved on a s. 137.1 motion”: Hamer, at para. 37; Pointes, at para. 52.
c. The merits-based hurdle in s. 137.1(4)(a) is not a high bar. The evidentiary burden on the responding party is lower than a balance of probabilities. The responding party need establish only “grounds to believe”, that is, some basis in the record and the law, for finding that the proceeding has substantial merit and that the moving party has no valid defence: Bent, at para. 103; Mondal, at paras. 30, 51, and 56; Marcellin, at para. 10; Hamer, at paras. 45-46. Any basis in the record and the law is sufficient to meet this standard, so long as it is “legally tenable and capable of belief”: Bent, at para. 88. Further, a determination that the asserted defences “could go either way in the sense that they could be accepted or rejected is a finding that the defences may not succeed”: Hamer, at para. 49.
d. The crux of the analysis under s. 137.1 is the weighing exercise under s. 137.1(4)(b). It is at this stage that the intention behind the legislation is given expression and force. It is here that the court determines whether the public interest in the impugned speech is such that it should not be silenced or chilled by the threat of litigation. It is here that the strategy in allegedly strategic litigation is potentially identified and exposed. It is here that the court considers “what is really going on” and assesses the extent to which “allowing individuals or organizations to vindicate their rights through a lawsuit — a fundamental value in its own right in a democracy — affects, in turn, freedom of expression and its corresponding influence on public discourse and participation in a pluralistic society”: Pointes Protection, at para. 81.
e. In the weighing exercise under 137.1(4)(b), the responding party need not prove the existence of harm or that such harm was caused by the moving party’s expression but simply provide evidence from which an inference of the likelihood of harm and causation may be drawn: Park Lawn, at para. 46; Marcellin, at para. 89; Hamer, at para. 94.
f. Presumed harm or bald assertions of harm will not, in themselves, be sufficiently serious such that the public interest in permitting a respondent’s proceeding to continue would outweigh the public interest in protecting the moving party’s expression on a matter of public interest.
g. At the same time, the s. 137.1 framework is “not a ‘carte blanche’ to defame”: Park Lawn, at para. 33. Reputation plays a central role in human societies and is widely recognized as “one of the most valuable assets a person or business can possess”. It thus carries considerable weight in the weighing exercise under s. 137.1: Pointes Protection, at para. 69; Bent, at para. 146; Marcellin, at para. 96. For this reason, harm to one’s reputation, even if not quantifiable, is generally very serious: Hamer, at para. 113.
h. In considering the public interest in protecting the moving party’s expression, “the quality of the expression, and the motivation behind it, are relevant here”: Pointes Protection, at para. 74 (emphasis in original). Not all expression is created equal. On the one hand, the closer the expression is to any of the core values underlying the protection of freedom of expression under s. 2(b), including the search for truth, participation in political decision-making, and diversity in forms of self-fulfillment and human flourishing, the greater the public interest in protecting it. On the other hand, statements that contain deliberate falsehoods and gratuitous personal attacks are “very tenuously” related to the core values which underlie s. 2(b) and there will be less of a public interest in protecting such statements: Pointes Protection, at paras. 76-77; Bent, at para. 163; Marcellin, at para. 102.
i. The weighing of interests under s. 137.1 is an “open-ended” exercise which requires the motion judge to consider all relevant factors. These include whether the hallmarks or indicia of a classic SLAPP are present, such 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: Marcellin, at para. 111. Other factors that may be relevant include the importance of the expression, the history of litigation between the parties, broader or collateral effects on other expressions on matters of public interest, the potential chilling effect on future expression either by a party or by others, the defendant’s history of activism or advocacy in the public interest, any disproportion between the resources being used in the lawsuit and the harm caused or the expected damages award, and the possibility that the expression or the claim may provoke hostility against an identifiably vulnerable group or a group protected under s. 15 of the Charter or human rights legislation: Pointes Protection, at para. 80.
j. A motion judge’s determination on a s. 137.1 motion is entitled to deference on appeal, absent an error in law or palpable and overriding error of fact or of mixed fact and law: Bent, at para. 77; Such deference is particularly appropriate in respect of the motion judge’s weighing exercise under s. 137.1(4)(b), which is open-ended and highly discretionary. However, if a motion judge commits a reversible error, this court may consider the matter afresh. Hamer, at para. 32; Marcellin, at paras. 57, 88, and 118-19; 2110120 Ontario Inc. v. Buttar, 2023 ONCA 539, 485 D.L.R. (4th) 551, at paras. 35, 92, and 97-98, leave to appeal refused, [2023] S.C.C.A. No. 432.
(2) The motion judge did not err in finding that there were reasonable grounds to believe that the appellants had no valid defence to the defamation claim
[48] As discussed above, the appellants argue that the defences of qualified privilege, fair comment and justification were available to them in respect of the respondent’s defamation claim.
[49] We consider each of these defences in turn and explain why the motion judge did not err in finding that there were reasonable grounds to believe that none of these defences was likely to succeed.
(a) Qualified privilege
[50] The appellants argue that the motion judge erred in finding that there were grounds to believe that the Board Chair acted with malice in making the impugned statements. He therefore wrongly concluded that the defence of qualified privilege was unlikely to succeed.
[51] The appellants advance four arguments in this regard:
(i) the motion judge’s finding of malice was based on his mistaken belief that the Board Chair’s decision to stop the respondent’s presentation was arbitrary, contrary to the later finding of the Divisional Court that the Board acted reasonably in upholding the ruling of the Board Chair;
(ii) the motion judge found that the Board Chair was acting to defend himself, rather than defend a disadvantaged group, but this argument was not advanced by the respondent on the motion and it was thus a denial of procedural fairness for the motion judge to rely upon it;
(iii) the Board Chair genuinely believed that his statements describing the respondent’s presentation were true, which negatives a finding of malice on his part; and
(iv) malice must be the dominant motive for expressing an opinion in order to defeat a defence, but the motion judge made no finding in this regard.
[52] Respectfully, we would not accede to these submissions.
[53] As we pointed out earlier, all that is required of the responding party in respect of s. 137.1(4)(a)(ii) is that they show “grounds to believe”, that is, some basis in the record and the law, for finding that the moving party has no defence to the claim. Moreover, any basis in the record and the law is sufficient to meet this standard so long as it is legally tenable and capable of belief.
[54] Turning to the first of the arguments set out above, the appellant is correct that due to the Divisional Court’s decision, the motion judge was mistaken in proceeding on the basis that the Board had no authority to end the presentation. But the Divisional Court decision did not necessarily undermine the motion judge’s finding as to whether the defence of qualified privilege was available to the appellants, since the issue before the Divisional Court was quite different from that raised by the respondent’s defamation claim. The Divisional Court was concerned with whether the Board and/or the Board Chair had the legal authority to stop the respondent’s presentation at the Board meeting, not with whether comments made by the Board Chair after the meeting were defamatory. Thus, the Divisional Court’s decision does not immunize the later statements made by the Board Chair from being actionable if the statements were defamatory.
[55] For clarity, we make no comment as to whether or not the fact that the Board and/or the Board Chair acted reasonably in stopping the respondent’s presentation could be relevant in a later assessment of the merits of the respondent’s defamation claim. Our point is simply that the Divisional Court decision is not in itself an answer to the respondent’s defamation claim and thus does not provide a basis for dismissing the claim summarily on a s. 137.1 motion.
[56] Nor, in our view, did the motion judge deny the appellants procedural fairness by inferring that the Board Chair was acting to defend himself rather than a disadvantaged group. The focus of the questions put to the Board Chair in his two media interviews was whether his decision to stop the respondent’s presentation was justified. There was thus a basis in the record for the motion judge to draw the inference that the Board Chair was attempting to justify his decision to stop the respondent’s presentation. Regardless of whether this argument was raised by the respondent in her submissions, the motion judge did not deny the appellants procedural fairness by relying upon it. This is because all he has decided is that this very issue should proceed to a hearing on the merits. In other words, the motion judge’s dismissal of the appellants’ s. 137.1 motion does not in any way limit their ability to argue in subsequent proceedings that the Board Chair was not in fact attempting to justify his decision to stop the presentation but, rather, was seeking to defend a disadvantaged group. There was thus no denial of procedural fairness in this regard.
[57] The remaining two arguments raised by the appellants in respect of the defence of qualified privilege focus on whether the Board Chair was actually motivated by malice in making the impugned statements and, if so, whether such malice was his dominant motive. Yet the appellants do not appeal the motion judge’s finding that the Board Chair made statements about the respondent’s presentation that were untrue by attributing to her comments that she did not make. Moreover, the media interviews with the Board Chair took place within days of the Board meeting over which he himself had presided. There was thus some basis in the record from which it could be inferred that the Board Chair acted recklessly (and thus, legally, with “malice”) in claiming that the respondent had made statements that were not in fact made by her. Whether in fact he acted recklessly, and whether this was his dominant motive in making the statements, is a matter to be determined at a substantive hearing on the merits, rather than on a s. 137.1 motion.
[58] We conclude that the motion judge did not err in finding that the respondent had met her burden in respect of the defence of qualified privilege and would reject this ground of appeal.
(b) Fair comment
[59] The appellants argue that the motion judge erred in two respects in his findings on the defence of fair comment.
[60] Firstly, the motion judge erred in his finding that Board Chair’s statements did not have a basis in fact. The factual basis for the Board Chair’s comments was the respondent’s statement during her presentation that a book about a youth who was born female and now identifies as male “makes very serious medical interventions seem like an easy cure for emotional and social distress.”
[61] Secondly, the motion judge erred in his finding that the defence of fair comment would be overcome by a finding of malice on the part of the Board Chair.
[62] The appellants’ submissions on this second alleged error essentially repeat their arguments in respect of malice which were considered and rejected above, and that analysis will not be repeated here.
[63] With respect to the first alleged error, the appellants do not dispute for purposes of this motion that the Board Chair attributed statements to the respondent that she did not in fact make at the meeting. There is thus some basis in the record upon which it could be inferred that the Board Chair made statements that were not based in fact. Whether such an inference should properly be drawn is a matter to be determined at a substantive hearing on the merits, rather than in the context of a s. 137.1 proceeding.
[64] We also point out that in order for the defence of fair comment to succeed, the factual basis for the comment must be reasonably available so that members of the public can make up their own minds as to whether the comment was fair (Hansman, at paras. 99-100). As the motion judge pointed out, the Board had removed the video of the respondent’s presentation from the Board website, thereby precluding members of the public from making their own assessment as to what was actually said at the meeting. This will likely be a relevant consideration at a substantive hearing on the merits of whether the appellants have a valid fair comment defence to the respondent’s defamation claim.
[65] We conclude that the motion judge did not err in finding that the respondent had met her burden in respect of the defence of fair comment and would reject this ground of appeal.
(c) Justification
[66] The appellants say that the motion judge failed to provide any legal basis for rejecting the defence of justification, other than his single conclusory statement at para. 12 that, “[i]n view of the plain words, all of which are recorded, I see no reasonable grounds to believe that the defence of justification will succeed.” The appellants argue that this single statement was legally insufficient since it failed to provide an understandable basis for the motion judge’s rejection of the justification defence.
[67] We do not agree.
[68] The motion judge indicated that the defence of justification would not succeed “in view of the plain words, all of which are recorded”. This presumably refers to the “plain words” of the Board Chair and the respondent at the Board meeting, as well as the statements made by the Board Chair in his subsequent media interviews.
[69] As noted above, the motion judge had earlier found that the Board Chair attributed statements to the respondent that she did not in fact make, and no appeal is taken in respect of that finding. Since the defence of justification will fail if the impugned statements are untrue, this provides an intelligible basis for understanding the motion judge’s conclusion on the defence of justification.
[70] We would therefore dismiss this ground of appeal.
(3) The motion judge erred in the weighing exercise under s. 137.1(4)(b)
[71] As the relevant paragraphs from the motion judge’s reasons set out earlier in these reasons indicated, the motion judge recited the proper factors to be weighed under s. 137.1(4)(b). He said that he was weighing “the public interest in permitting the proceeding to continue” against “the public interest in protecting the defendant’s expression.” However, the motion judge considered only one side of the equation, namely, the reputational harm caused to the respondent by the Board Chair’s speech, along with the respondent’s rights under s. 2(b) of the Charter. He did not consider the countervailing public interest that could attach to the Board Chair’s speech. As a result, the weighing process was skewed. Having considered only those interests that favoured the respondent — her experience of harm and right to speak — it was inevitable that the weighing would resolve in the respondent’s favour.
[72] As it related to the appellants, the motion judge focused on the decision to shut down the respondent’s presentation. This raises two difficulties. First, as discussed above, the motion judge’s criticism of the Board’s decision to shut down the respondent’s presentation is called into question by the subsequent Divisional Court decision upholding the validity of the Board’s decision. Second, and more importantly, the shutdown of the presentation was not the factor to be weighed against the alleged harm to the respondent. It was, rather, the Board Chair’s speech in the aftermath of the meeting, including the public statements made during media interviews, that had to be weighed in the balance. The motion judge focused on the Board’s curtailment of the respondent’s speech but failed to consider the public interest attaching to the speech of the Board and the Board Chair’s speech — the speech that was the very subject matter of the litigation.
[73] Each of these problems will be addressed in turn below.
(a) The Divisional Court decision
[74] The motion judge’s weighing analysis hinged on the underlying premise that it was wrong for the Board Chair to stop the presentation and curtail the respondent’s remarks. The motion judge characterized the shutdown of the presentation as “embarrassingly erroneous and arbitrary” and, in fact, undemocratic.
[75] The motion judge did not have the benefit of the Divisional Court’s decision upholding the decision to halt the respondent’s presentation. Nonetheless, it follows from the Divisional Court decision that the motion judge erred in finding that the Board had no authority to intervene. The motion judge’s criticism of the Board for halting the meeting figured prominently in his analysis, including his weighing of interests under s.137.1(4)(b). However, as will be discussed below, it was not the halting of the meeting that was at issue in this case. It was, rather, the public interest in the Board Chair’s speech following the shutdown that was to serve as the counterweight to the respondent’s alleged harm.
(b) The shutdown was not the issue
[76] In Hansman, the Supreme Court found that the British Columbia Court of Appeal erred in focusing on the need to protect the legitimate speech of the plaintiff, rather than the public interest in the defendant’s speech, offered in response to the plaintiff. As the court put it, at para. 7:
I agree with the chambers judge. Mr. Neufeld argued in the courts below and in this Court that he only criticized a policy; he never expressed hatred towards the transgender community, nor did his words create an unsafe school environment for transgender students. But his submissions miss the mark. Mr. Neufeld’s right to criticize a government initiative is not in dispute. Rather, the central issue is whether Mr. Hansman had a right to respond to Mr. Neufeld in the way he chose without the threat of civil liability.
[77] The same can be said in this case. The issue was not the respondent’s right to comment on books in the school library. Nor was it the propriety of the Board’s decision to curtail those comments. Rather, the issue was whether the Board Chair had a right to respond to the respondent, in the way that he chose, without the threat of civil liability. As in Hansman, at para. 90, the speech of the plaintiff in this case serves as context for evaluating the defendant’s expression. But it was the public interest in the Board Chair’s expression, not that of the respondent, that was to be weighed.
[78] While a motion judge’s determination on a s. 137.1 motion is entitled to deference on appeal absent an error in law, or a palpable and overriding error of fact or mixed fact and law, in the face of such an error the usual standard of deference is suspended, and it is open to the appellate court to consider the matter, including the weighing analysis, afresh.
[79] In this case, the record is sufficiently robust that this court can independently weigh the alleged harm to the respondent against the public interest in the Board Chair’s speech: see Mondal, at para. 67. We will do so in the paragraphs that follow.
(4) Did the harm to the respondent outweigh the value of the appellants’ speech?
(a) What is really going on here?
[80] In assessing “what is really going on”, the court may consider whether the case contains the hallmarks or indicia contemplated by the anti-SLAPP regime. While not determinative, the presence or absence of these hallmarks informs the public interest weighing analysis under s. 137.1(4)(b).
[81] This case does not fall within the paradigm of SLAPP litigation. This is not a case in which a powerful plaintiff is seeking to silence criticism by those less powerful. In this case, it is the appellants, representing a public institution, who are arguably the more powerful party. This case does not have the traditional hallmarks of abusive or strategic litigation aimed at curtailing undesirable speech. Rather, this is a case of a private citizen (employed by the Board) who claims reputational harm as a result of public statements made by a representative of the Board. The power imbalance does not favour the respondent. If anything, it points in the opposite direction. Although not dispositive of the analysis under s. 137.1, this does bear on the weighing of interests, and the question of what is really going on in the context of this proceeding.
(b) Harm to the respondent
[82] We are satisfied, as was the motion judge, that the respondent has met the burden of showing harm as required at this preliminary screening stage. The statements at issue were broadly disseminated and it can be reasonably inferred that they have had a deleterious impact on the respondent’s reputation. In Pointes, at para. 71, Côté J. emphasized that harm and causation are determined at an early stage in the proceedings and cannot be judged on an exacting standard:
I would not go so far as to require a fully developed damages brief, nor would I require that the harm be monetized, as the question here relates to the existence of harm, not its quantification. The statutory language employed in s. 137.1(4)(b) is “harm likely to”, which modifies both “be” and “have been”; this indicates that the plaintiff need not prove harm or causation but must simply provide evidence for the motion judge to draw an inference of likelihood in respect of the existence of the harm and the relevant causal link. [Emphasis in original.]
[83] In her affidavit the respondent described suffering serious emotional distress following the Board Chair’s statements about her and the ensuing media storm. This culminated in a panic attack, mental breakdown and hospitalization on January 22, 2022. Since then, she has required anxiety medication and therapy. In addition to employment sanctions imposed the day after the Board meeting, the respondent deposed that following the Board Chair’s media statements she lost the opportunity to work during her retirement as an occasional teacher, the income of which had been part of her retirement plan.
[84] The appellants argue that the motion judge erred by failing to (1) inquire whether the respondent actually suffered the harm she alleged and (2) consider whether the impugned statements actually caused the alleged harm, as other individuals also criticized the respondent’s comments at the Board meeting.
[85] We do not accept these submissions. At this stage of the proceedings, the motion judge was entitled to infer from the respondent’s affidavit evidence and the wide media coverage of the Board Chair’s statements a likelihood of serious harm and a causal link to the impugned statements. In any event, based on the record in this motion, we are satisfied that the respondent has established a likelihood of significant harm caused by the Board Chair’s statements. There is therefore a strong public interest in allowing her action to proceed.
(c) Public interest in the appellants’ speech
[86] The motion judge did not appear to attach any value to the Board Chair’s speech expressed in public media interviews after the shutdown of the respondent’s presentation. In weighing this interest anew, this court must consider both the quality of the speech, and the motivation behind it: Hansman, at para. 79. The closer the expression is connected to the core values of s. 2(b) of the Charter — “truth-seeking, participation in political decision-making and diversity in the forms of self-fulfillment and human flourishing” — the greater the public interest in its protection: Hansman, at para. 79.
[87] The defendants argue that the speech in question — offered in media interviews by the Board Chair — was counter-speech as defined by the Supreme Court of Canada in Hansman. They say that the Board Chair was motivated to counter the offensive statements made by the respondent, as those comments conveyed discriminatory stereotypes about transgender persons, and it was necessary to ensure that the school system was a welcoming place for all, including those in the trans community.
[88] The concept of counter-speech was described by the Supreme Court in Hansman, at para. 82:
Counter-speech motivated by the defence of a vulnerable or marginalized group in society also engages the values at the core of s. 15(1); namely, the equal worth and dignity of every individual. Targets of degrading expression belonging to a vulnerable group in society may lack the ability or authority to effectively combat the harmful speech themselves. Discourse can then take on an uneven quality, making protective counter-speech by the group or individual’s more powerful advocates all the more influential and important. [Citations omitted.]
[89] The motion judge, while referring to the concept of “counter speech”, found that the Board Chair was not motivated by a desire to defend persons from a marginalized group. He proceeded on the basis that the Board Chair was trying to justify his own behaviour in shutting down the respondent’s presentation. On the motion judge’s analysis, the Board Chair’s statements were rooted more in self-interest than a desire to vindicate the rights and dignity of transgender students.
[90] This characterization of the Board Chair’s motivation was undoubtedly influenced by the motion judge’s view that it was improper to shut down the respondent’s presentation, a view that was later rejected by the Divisional Court, albeit in different litigation. Even setting that aside, however, the motion judge was not moved by the argument that the Board Chair was acting in defence of a marginalized group. As he put it, “[r]egard for the historical and present plight of the transgendered, as articulated in paragraph 85 of Hansman, does not negate section 2(b) of the Charter.”
[91] There may well have been an element of self-justification in the Board Chair’s motives for speaking, but this is not necessarily nefarious. Public officials should explain their decisions to the communities that they serve. The Board Chair was pressed to explain why he had shut down the respondent’s presentation and it was appropriate for him to explain that decision to the public. The evidence would also support a finding that the Board Chair was motivated to respond to what he perceived to be inappropriate and discriminatory remarks.
[92] There is, accordingly, some public interest attaching to the Board Chair’s remarks, both as explanatory comment and as speech aimed at countering what he perceived to be the respondent’s “transphobic” remarks. To the extent that the Board Chair’s speech was aimed at countering speech that undermined the equal worth and dignity of a marginalized group, it has some of the hallmarks of counter speech.
[93] At the same time, the public interest is substantially reduced by the fact that the Board Chair attributed comments to the respondent that she did not make. He exaggerated the content, tone and import of her remarks, using hyperbolic language. He drew inferences from what she said, but did not distinguish between her speech, and what he inferred from it.
[94] This point may be illustrated by comparing the respondent’s remarks to what the Board Chair attributed to her. At the meeting, the respondent criticized two books as being inappropriate for young children, including one in which a character who had been born female but identified as male is content with not being able to have children naturally as a result of the transition process. The respondent said that the book did not take into account how the character might feel later in life about being infertile, and “makes very serious medical interventions seem like an easy cure for emotional and social distress.”
[95] The Board Chair offered the following comments about the respondent’s presentation in his public interviews:
a. The respondent’s comments were “transphobic”.
b. Her comments “questioned the right to exist of trans people”.
c. He had no choice but to stop the presentation and expel the respondent from the meeting.
d. Her presentation “violated WRDSB policy and the Human Rights Code”.
e. He had to warn her and after giving her a second chance, she “doubled down”.
f. The respondent was “out of order.”
g. He did not want to “give oxygen” to the comments that she made during the meeting.
h. The respondent spoke at the meeting in a way that was “disrespectful” and that “would cause transgendered people to be attacked.”
i. She was “not respectful or courteous towards transgendered people” during her presentation.
j. She “violated the rules for delegations”.
k. She had reached the point of a violation, her comments were escalating, and they needed to be stopped.
l. She was “not promoting healthy debate” during the meeting.
m. In referring to the decision to stop her presentation, the Board “had a responsibility to not allow hate into our Board meeting”.
[96] The comments made by the respondent could be interpreted by some as reflecting undesirable and offensive stereotypes that have historically plagued the transgender community. One such discredited notion is that those who identify as transgender are simply confused and experiencing “emotional and social distress”. The Board Chair may have perceived that the respondent’s comments were rooted in erroneous myths and stereotypes. He may have inferred that the effect of her speech was, in some fashion or another, to question the right of trans people to exist. However, that was his interpretation of what the respondent said. It was not what she said. He did not distinguish between her speech, his interpretation of that speech, or the inferences that he drew from it.
[97] The transgender community has experienced serious historical discrimination and disadvantage. Speech that stigmatizes and marginalizes transgender persons is properly countered in order to convey respect for their dignity and equality. These are important interests.
[98] However, it is one thing to counter discriminatory speech; it is quite another to counter speech that was not expressed. The mischaracterization of what the respondent said is at the core of the action. The Board Chair’s remarks would have led members of the public to perceive that the respondent said something far more insidious than she did. There is a public interest in defending the rights of those who are stigmatized, but this does not license speech that derogates from truth.
[99] In Hansman, the court, while recognizing the public interest in counter-speech, stressed that this does not translate into “open season” on reputation. As the court put it, at para. 92:
Although one’s engagement in counter-speech does not amount to “open season” on reputation and speakers must always choose their words carefully, on the whole, Mr. Hansman’s words were not a disproportionate or gratuitous response to Mr. Neufeld’s statements. When confronted with views a person believes to be discriminatory, individuals often use words such as “bigoted”, “intolerant”, or even sometimes “hateful”. I note that Mr. Hansman’s expression generally focused on the views that Mr. Neufeld expressed, and not who he is as a person. [Citations omitted.]
[100] Here, as in Hansman, the Board Chair’s comments focused on the respondent’s views rather than who she was as a person. However, here, unlike in Hansman, the Board Chair’s words could be seen as disproportionate or gratuitous in their characterization of the respondent’s remarks. The level of protection afforded to any particular expression will vary, but the public interest will invariably diminish for statements that contain deliberate misrepresentations or gratuitous attacks on a person’s reputation: Marcellin, at para. 102; Pointes Protection, at para. 75.
[101] The responsibility to be accurate took on an enhanced importance in this case, given that the Board chose not to post the recording of the meeting. As a result, the respondent’s words were not available to those members of the public who might want to check what she said for themselves. The public had only the Board Chair’s speech to rely upon. When he gave his interview to 570 News on January 19, 2022, the Board Chair knew that the recording was not available, and this ought to have reinforced the importance of accuracy in his own rendition of the respondent’s statements. In these circumstances, the public interest in protecting the Board Chair’s expression falls at the lower to middle range of the spectrum.
(d) Conclusion on weighing
[102] We find that the harm experienced by the respondent outweighs the public interest attaching to the Board Chair’s speech. This is not a case in which the action is abusive, strategic or otherwise subject to the anti-SLAPP regime. This is not a proceeding whose purpose or effect engages the key rationale underlying s. 137.1.
[103] The comments below of van Rensburg J.A. in Marcellin, at para. 118, have direct application to this case:
On the other hand, a dismissal of the Action at this early stage would prevent [the plaintiff] Mr. Marcellin from having any recourse to remedy harm to his reputation that was caused by the respondents. As the Supreme Court stated in Pointes Protection, the anti-SLAPP provision ensures that “a plaintiff with a legitimate claim is not unduly deprived of the opportunity to vindicate that claim”: at para. 48. In my view the Action is a proportionate response by Mr. Marcellin to the respondents’ conduct. What is “really going on” here is not an improper attempt through litigation to suppress expressions by the respondents that are in the public interest; rather the Action is an attempt to remedy seemingly legitimate harm suffered as a result of the respondents’ conduct that was directed toward Mr. Marcellin and his reputation. “This is not the type of case that comes within the legislature’s contemplation of one deserving to be summarily dismissed at an early stage, nor does it come within the language of the statute requiring such a dismissal”: Bent, at para. 172.
[104] In sum, while we charted a different path than the motion judge, we find ourselves in agreement with his ultimate conclusion that the respondent should be permitted to advance her claim.
(5) The motion judge did not err in finding that the Superior Court has jurisdiction over the subject matter of the respondent’s claim
[105] The appellants argue that the motion judge erred in finding that the court had jurisdiction over the subject matter of the respondent’s claim. They argue that a labour arbitrator has exclusive jurisdiction to deal with all disputes between parties arising either expressly or inferentially from a collective agreement, citing the recent decision of Dunphy J. in Ciulla v. The Toronto Catholic District School Board, 2021 ONSC 3110, 70 C.C.E.L. (4th) 191.
[106] The difficulty with the appellants’ argument in this respect is that they do not articulate how the respondent’s claim arises from the collective agreement. The respondent’s comments were made at a meeting to which members of the public were invited. The Board Chair did not stop the respondent’s presentation because she was at that time employed as a teacher, nor did he claim that she had violated the collective agreement. Rather, his concern was that the respondent might be violating the Human Rights Code. Moreover, the respondent does not allege a violation of, or seek a remedy under, the collective agreement. As such, the circumstances here are quite different from those in cases such as Ciulla, where a school board was alleged to have violated a collective agreement and/or policies governing conduct in the workplace.
[107] We would therefore dismiss this ground of appeal.
(6) The motion judge did not err in awarding costs to the respondent
[108] The appellants seek leave to appeal the costs decision of the motion judge on the basis that he failed to apply the presumption in s. 137.1(8) of the CJA, which provides that even where a responding party is successful on a s. 137.1 motion, they are not entitled to costs unless the judge determines that such an award is appropriate in the circumstances.
[109] As is well known, the award of costs is a discretionary decision that is entitled to deference on appeal.
[110] The motion judge made reference to s. 137.1(8) but found that it was appropriate to award partial indemnity costs to the respondent given that, in his view, public bodies (i.e., the Board and the Board Chair) were attempting to limit open debate on an issue of public importance.
[111] It was open to the motion judge to exercise his discretion to award partial indemnity costs to the respondent and we would not interfere with the manner in which he exercised his discretion.
[112] We would grant leave to appeal the costs award but dismiss the costs appeal.
DISPOSITION
[113] While the motion judge erred in the weighing analysis for the reasons described above, we nevertheless agree with the result he reached, namely, that the appellants’ motion was properly dismissed and the respondent’s action in defamation should be allowed to proceed.
[114] In accordance with the agreement of the parties, we award $15,000 in costs on an all-inclusive basis to the respondent.
[115] We close with a comment about the use of language. The intervener Egale Canada noted that the motion judge used various terms to describe transgender persons, some of which were erroneous. We agree that words matter. Proper terminology signals respect for the dignity and equality of an individual or group. This is all the more important when referring to those from historically marginalized communities, who have fought to have their identities recognized. We are confident that the motion judge meant no disrespect by using the terms that he did, but we encourage all participants in the justice system to take the necessary care when engaging with language that purports to define individual identity.
Released: November 5, 2024 “B.Z.”
“P.J. Monahan J.A.”
“R. Pomerance J.A.”
“I agree. B. Zarnett J.A.”