August 30, 2018
1704604 Ontario Ltd v Pointes Protection Association 2018 ONCA 685

In April 2016, the appellants, Pointes Protection Association (“Pointes”) and individual members of its executive committee, brought a motion under s. 137.1 of the CJA to dismiss an action that had been brought against them by 1704604 Ontario Ltd. (“170 Ontario”) for breach of contract. In that lawsuit, 170 Ontario alleged that the defendants had breached the terms of a Settlement Agreement when one of the defendants gave evidence in a proceeding before the Ontario Municipal Board (“OMB”). 170 Ontario claimed that the terms of the Agreement prohibited the defendants from advancing, through the evidence of one of the defendants, the opinions offered before the OMB.

The motion judge dismissed the defendants’ motion and ordered that the action proceed. The defendants appealed pursuant to s. 6(1)(d) of the CJA. That section provides a right of appeal from “an order made under s. 137.1”.

The appeal was argued in December 2016. The ONCA had not previously considered s. 137.1 of the CJA. During oral argument, counsel referred to decisions made on s. 137.1 motions brought in other proceedings. Some of those decisions were also under appeal to the ONCA.

Six appeals were heard together. The court reserved judgment. All of the appeals required an interpretation of various components of s. 137.1. There were also discrete issues raised in each appeal.

This judgment sets out the ONCA’s understanding of the various provisions of s. 137.1 and applies to the other 5 appeals. Each appeal also raises specific arguments, with specific issues not shared by the others.

In analyzing the “threshold requirement” (s. 137.1(3)), the ONCA states:

In reading s. 137.1(3) expansively to capture all expressions that relate to matters of public interest, one must bear in mind that the defendant who satisfies its onus under that subsection is not entitled to any relief. A finding in favour of the defendant under s. 137.1(3) only opens the claim to examination under both components of s. 137.1(4). That section provides the mechanism for separating claims arising from expressions on matters relating to public interest that should be allowed to proceed from those that should not. Nonetheless, passing the threshold requirement in s. 137.1(3) is significant in that it moves the burden of persuasion to the plaintiff (responding party) to satisfy the motion judge that the action should proceed.

…the concept of “public interest” as it is used in s. 137.1(3) is a broad one that does not take into account the merits or manner of the expression, nor the motive of the author. The determination of whether an expression relates to a matter of public interest must be made objectively, having regard to the context in which the expression was made and the entirety of the relevant communication. An expression may relate to more than one matter. If one of those matters is a “matter of public interest”, the defendant will have met its onus under s. 137.1(3).

The court then moves on to s. 137.1(4)(a), the “merits-based hurdle”, after the defendant (moving party) has cleared s. 137.1(3):

The section puts the onus on the plaintiff (responding party). The word “satisfies” indicates that the balance of probabilities is the applicable standard of proof. The more difficult question is, what is it that the plaintiff must prove on the balance of probabilities?

While I have stressed that s. 137.1 motions are not a form of summary judgment, nor the proper forum in which to make a detailed assessment of the ultimate merits of the case, I do not mean to suggest that a motion judge must simply take at face value the allegations put forward by the parties on the motion. An evaluation of potential merit based on a “grounds to believe” standard contemplates a limited weighing of the evidence, and, in some cases, credibility evaluations. Bald allegations, unsubstantiated damage claims, or unparticularized defences are not the stuff from which “grounds to believe” are formulated. Similarly, if on a review of the entirety of motion material, the motion judge concludes that no reasonable trier could find a certain allegation or piece of evidence credible, the motion judge will discount that allegation or evidence in making his or her evaluation under s. 137.1(4)(a). Once again, the question is not whether the motion judge views the evidence as credible, but rather whether, on the entirety of the material, there are reasonable grounds to believe that a reasonable trier could accept the evidence.

The ONCA then moves on to an examination of s. 137.1(4)(b), the “public interest hurdle”:

Under s. 137.1(4)(b), the plaintiff (responding party) has the persuasive burden. The plaintiff must satisfy the motion judge that the harm caused to it by the defendant’s expression is “sufficiently serious” that the public interest engaged in allowing the plaintiff to proceed with the claim outweighs the public interest in protecting the defendant’s freedom of expression.

The harm suffered or likely to be suffered by the plaintiff as a consequence of the defendant’s expression will be measured primarily by the monetary damages suffered or likely to be suffered by the plaintiff as a consequence of the impugned expression. However, harm to the plaintiff can refer to non-monetary harm as well. The preservation of one’s good reputation or one’s personal privacy have inherent value beyond the monetary value of a claim.

On the s. 137.1 motion, the plaintiff must provide a basis upon which the motion judge can make some assessment of the harm done or likely to be done to it by the impugned expression. This will almost inevitably include material providing some quantification of the monetary damages. The plaintiff is not, however, expected to present a fully-developed damages brief. Assuming the plaintiff has cleared the merits hurdle in s. 137.1(4)(a), a common sense reading of the claim, supported by sufficient evidence to draw a causal connection between the challenged expression and damages that are more than nominal will often suffice.

The plaintiff cannot, however, rely on bald assertions in the statement of claim relating to damages, or on unsourced, unexplained damage claims contained in the pleadings or affidavits filed on the s. 137.1 motion. The motion judge must be able to make an informed assessment, at least at a general or “ballpark” level, about the nature and quantum of the damages suffered or likely to be suffered by the plaintiff…

Turning to the other side of the balancing exercise in s. 137.1(4)(b), the public interest in protecting the defendant’s freedom of expression, the motion judge must assess the public interest in protecting the actual expression that is the subject matter of the lawsuit. On a general level, the importance of freedom of expression, especially on matters of public interest, both to the individual and to the community, is well understood: see Grant v. Torstar Corp., at paras. 32-57. However, if the defendant asserts a public interest in protecting its expression beyond the generally applicable public interest, the evidentiary burden lies on the defendant to establish the specific facts said to give added importance in the specific circumstances to the exercise of freedom of expression.

In addition to the quality of the expression and the defendant’s motivation for making the expression, the consequences of the plaintiff’s claim will figure into the weight to be given to the public interest in protecting that expression. Evidence of actual “libel chill” generated by the plaintiff’s claim can be an important factor in the public interest evaluation required under s. 137.1(4)(b)…

The public interest evaluations required under s. 137.1(4)(b) cannot be reduced to an arithmetic-like calculation. It would be misleading to pretend they can be. The assessments are qualitative and, to some extent, subjective. Because the balancing of the competing public interests will often be determinative of the outcome of the s. 137.1 motion, and because the analysis contains an element of subjectivity, it is crucial that motion judges provide full reasons for their s. 137.1(4)(b) evaluations.

The ONCA concludes its analysis of ss. 137(4)(a) and (b) with the following two observations:

First, the plaintiff’s claim will be dismissed if the plaintiff cannot meet its persuasive burden under either ss. 137.1(4)(a) or (b). A motion judge is under no obligation to address both. In some cases, and I think this may have particular application to defamation claims, the public interest analysis under s. 137.1(4)(b) may well be more straightforward than the merits-based analysis required under s. 137.1(4)(a). For example, if the defendant has demonstrated that the plaintiff has not suffered any significant harm and has brought the lawsuit to silence or punish the defendant, the public interest analysis should be straightforward and lead to a dismissal of the action without the need to engage in the more difficult and time-consuming merits-based analysis.

Second, cases like the present, in which the claim turns on the interpretation of the language in a contract, do not fit comfortably within the s. 137.1 analysis. The balancing of the public interest required under s. 137.1(4)(b) depends largely on how one assesses the merits of the allegation that the defendant breached the contract. There would be little public interest in protecting a defendant’s right to make certain statements if the defendant had made a fully informed decision to bargain away his or her right to make those statements in exchange for something of value to the defendant. Similarly, an assessment of the harm suffered by the plaintiff by dismissing the claim would depend entirely on whether the plaintiff’s interpretation of the contract was correct.