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Torts - SLAPP - Harm-Expression Balancing (6). Universalcare Canada Inc. v. Gusciglio
In Universalcare Canada Inc. v. Gusciglio (Ont CA, 2025) the Ontario Court of Appeal allowed a SLAPP appeal, this from an order which "dismissed the [SS: defamation] action, finding that the respondent established that the proceeding arises from expression that, taken “as a whole”, related to the topic of elder care in long-term homes, which she concluded is a matter of public interest".
Here the "motion judge omitted any [SS: 137.1(4)(a)] analysis of whether the appellants had met their onus of establishing “grounds to believe” (1) that the action had merit and (2) that the respondent had no valid defence, and dismissed the action on the basis that in any event the appellants could not prevail on the motion because they had not persuaded the motion judge “that they likely have suffered any harm, or will suffer harm from Ms. Gusciglio’s tweets, let alone serious harm sufficient to outweigh the deleterious effect of stifling her expression on a matter of public interest.” [CJA 137.1(4)(b)]:The motion judge made reviewable errors in her s. 137.1(4) analysis
[12] The appellants are correct, however, that the motion judge made reviewable errors in her analysis under s. 137.1(4), such that it is necessary to allow the appeal and restore the action, without prejudice to the respondent refiling her motion if she chooses, to be heard by a different judge on the same record or as directed by the motion judge.
[13] No doubt mindful of this court’s repeated admonition that anti-SLAPP motions are intended to operate as an efficient, preliminary screen to filter out abusive claims, and not to descend to the depths of a summary judgment motion (see for example 40 Days for Life v. Dietrich, 2024 ONCA 599, at paras. 43 and 45, leave to appeal refused, [2024] S.C.C.A. No. 396), the motion judge attempted an analytical shortcut that restricted her analysis to the question of whether the appellants had satisfied their burden (under s. 137.1(4)(b)) of establishing that they had suffered sufficient harm. She concluded that the appellants had not done so, and therefore could not prevail at the balancing step, irrespective of whether they could have established that there were grounds to believe the action was meritorious and the respondent lacked any valid defence. Unfortunately, the motion could not be resolved on this basis.
[14] The motion judge’s analysis of the s. 137.1(4)(b) issue was brisk, immediately moving from the finding that “[t]he sum of the Plaintiffs’ evidence reveals little or no harm from Ms. Gusciglio’s tweets” to the conclusion that “[t]he reasonable inference is that the lawsuit is designed to address Ms. Gusciglio’s behaviour at the home … teach her a lesson, stand behind staff, and to deter others from behaving as she did.” The balancing analysis required by s. 137.1(4)(b) was then simply a matter of reporting that the effect of the action was to “curb her commentary on a matter of public interest”, with the assumed conclusion that the public interest in permitting the expression necessarily outweighed the public interest in allowing the appellants to continue the action to vindicate their claims.
[15] The motion judge made two errors. First, she made an error of mixed fact and law in finding the evidence revealed “little or no harm” from the tweets. To assess the harm from defamation, the motion judge was required to consider the sting of the words used, if not in every tweet then at least according to some representative samples drawn from a recognizable scheme of characterization. By not conducting the s. 137.1(4)(a) analysis, this was left undone. This left in shadow, at the s. 137.1(4)(b) stage, facts that could have led the motion judge “‘to draw an inference of likelihood’ of harm of a magnitude sufficient to outweigh the public interest in protecting the defendant’s expression”: Hansman v. Neufeld, 2023 SCC 14, 481 D.L.R. (4th) 218, at para. 67. Relevant facts might have included that Mr. Gulizia is the CEO of a company that operates in a highly regulated field, and whose business depends on a high degree of trust from both the public and regulatory bodies, and that the respondent made allegations of very serious wrongdoing (including the commission of serious crimes) against Mr. Gulizia personally, against the company he operates, and against Villa Colombo Vaughan. The likelihood of harm resulting from these allegations of wrongdoing must be assessed in light of the Supreme Court’s repeated emphasis on the “weighty importance that reputation must be given”, and that a person’s good reputation “is closely related to the innate worthiness and human dignity of the individual”: Bent v. Platnick, 2020 SCC 23 at para 146, (citing Hill v. Church of Scientology, 1995 CanLII 59 (SCC), [1995] 2 SCR 1130, at para 107.)
[16] In concluding that the evidence of harm adduced was insufficient, the motion judge applied too high a standard. At the public interest hurdle, “the plaintiff need not prove harm or causation; the court is tasked at this stage with drawing inferences of likelihood in respect of the existence of harm, its magnitude, and the relevant causal link”: Mondal v. Kirkconnell, 2023 ONCA 523, 485 D.L.R. (4th) 90, at para. 30; 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at para. 71. It was therefore an error to find the appellants had not, for the purpose of s. 137.1(4)(b) balancing, discharged their burden with respect to the likelihood of harm suffered. The standard applied was too stringent and failed to take sufficient account of the alleged harm to Mr. Gulizia’s professional reputation, even if not quantifiable at this stage.
[17] Second, the motion judge concluded that the insufficiency of evidence of harm was determinative of the balancing step because she assumed the respondent’s expression had value. This assumption was another error.
[18] It is hazardous to dispense with the s. 137.1(4)(a) analysis except in the clearest of cases, which this is not. Had the motion judge engaged in the preliminary step of assessing whether there were grounds to believe the defamation action had substantial merit and grounds to believe a defence would not succeed, the motion judge would have had to come to some preliminary assessment of the value of the respondent’s expression and whether it was motivated by malice. This would have assisted in the public interest balancing analysis. It is not sufficient, for the purposes of the balancing analysis, to simply note that the expression addressed a matter of public interest. It cannot be assumed that all expressions that address matters of public interest are necessarily of high value, let alone outweigh the public interest in permitting plaintiffs to pursue an action seeking a remedy for alleged harm suffered: Marcellin v. London (Police Services Board), 2024 ONCA 468, 498 D.L.R. (4th) 438, at paras. 96-97.
[19] Because of these two errors, the balancing analysis must be redone. As the parties argued before us, because we do not have the necessary findings that would permit us to conduct the analysis afresh, it is necessary to remit the matter to the Superior Court for a rehearing, should the respondent choose to continue with the motion. . Galati v. Toews
In Galati v. Toews (Ont CA, 2025) the Ontario Court of Appeal dismissed a plaintiff's appeal, here where the appellant-plaintiff "commenced an action against the respondents alleging that their statements caused him harm and that the respondents were liable to him on several bases, including defamation, conspiracy, unlawful means, intentional infliction of mental suffering and harassment" and the defendants successfully moved for a CJA 137.1(3) dismissal.
Here the court considers the CJA 137.1(4)(b) expression-harm 'balancing':The Weighing of Interests Issue
[83] Under s. 137.1(4)(b), the plaintiff has the burden to show that the harm likely to be suffered as a result of the defendant’s expression is sufficiently serious that the public interest in permitting their proceeding to continue outweighs the public interest in protecting the expression. The weighing of interests under s. 137.1(4)(b) “is the core of s. 137.1”: Pointes, at para. 62. The court in Pointes went on, at para. 62, to explain:While s. 137.1(4)(a) directs a judge’s specific attention to the merit of the proceeding and the existence of a valid defence in order to ensure that the proceeding is meritorious, s. 137.1(4)(b) open-endedly engages with the overarching concern that this statute, and anti-SLAPP legislation generally, seek to address by assessing the public interest and public participation implications. In this way, s. 137.1(4)(b) is the key portion of the s. 137.1 analysis, as it serves as a robust backstop for motion judges to dismiss even technically meritorious claims if the public interest in protecting the expression that gives rise to the proceeding outweighs the public interest in allowing the proceeding to continue. [84] As Pointes makes clear, it is necessary under s. 137.1(4)(b) for the plaintiff to show both the existence of harm and causation, namely that the harm was suffered as a result of the defendant’s expressions: at para. 68.
[85] The motion judge considered the nature and extent of the harm to the appellant caused by the respondents’ expression. He considered whether the appellant had shown harm, so caused, of a magnitude that would outweigh the public interest in protecting the respondents’ expression: Bent, at para. 144. He found that the appellant had failed to show this.
[86] In the words of the motion judge, the appellant “has not established he suffered any, much less serious, harm because of the expression[s]”. He found that there was no evidence that the appellant’s reputation was adversely affected. He referred to evidence of persons who said they were unaffected by the respondents’ statements and who continued to have confidence in the appellant’s expertise, competence and integrity, and the absence of evidence of anyone who said their view of the appellant was affected by the expressions. He noted that there was no evidence that the appellant lost any clients or income, and the fact that he continued to act in the VCC and A4C Actions. Although the appellant referred to a loss of donations to CRC, the motion judge observed that it was not a party to the action, the appellant could not claim for harm to a separate entity, and the evidence was insufficient to show how any change in the amount of donations resulted in an effect on what the appellant himself received from CRC. Finally, because of evidence in the appellant’s own materials of other extremely vitriolic and sustained criticisms of him by others, including the publication “Canuck Law”, he found that if there was damage to the appellant’s reputation, it was not shown to have been caused by the respondents, as opposed to other sources.
[87] The motion judge found a strong public interest in the evaluation of a lawyer’s services in the context of class action litigation that may affect the public, especially where public donations to support the litigation have been solicited. There was also a public interest in protecting the right of persons like Toews to make complaints to the LSO. In light of the timing of the appellant’s action (commenced the day before his response to the Toews’ complaint was due), he found that “what was really going on” was an attempt to intimidate members of the public who may be considering complaining to the LSO about the appellant, which in turn would harm the ability of the LSO to regulate the legal profession.
[88] The appellant argues that the motion judge underemphasized the importance of reputational harm. Citing this court’s decision in Teneycke v. McVety, 2024 ONCA 927, the appellant submits that proof of harm is not required where professional misconduct is alleged because serious harm is inferred. I do not accept that argument. Teneycke does not say that an allegation of harm to reputation means that the plaintiff will always prevail in the weighing exercise even if there is no evidence of actual harm suffered. In Teneycke, the nature of the allegations provided an indicia of serious harm, but the lack of evidence of actual harm attenuated the harm for the purpose of the weighing exercise, and may have pulled in favour of the defendants on the weighing exercise if the defendants had established a public interest in protecting their expression: at paras. 83-84. The plaintiff in Teneycke prevailed at the weighing of interests stage because there was a “low public interest in protecting the [defendants’] expression”, which had been motivated by malice and an ulterior purpose: at paras. 88-89.
[89] The motion judge referred to the presumed harm to reputation resulting from defamation. But he noted that, in the weighing exercise, the magnitude of the harm is important: Pointes, at para. 70; Bent, at para. 144. In the language of Teneycke, the motion judge properly considered that the absence of evidence of actual harm attenuated it for the purpose of the weighing exercise.
[90] The appellant also submits that the motion judge gave too limited consideration to the loss of CRC donations and its impact on him, and to his evidence of threats to which he has been subjected. In his affidavit, the appellant deposed that the CRC no longer posts about its activities in order to shield lawyers who work with the CRC and their clients from attacks.
[91] The difficulty with the appellant’s submission is the motion judge’s causation finding. The motion judge referred to the evidence from the appellant of a concerted campaign against him by a group known as “Canuck Law” who was not a party to his action. The motion judge stated: “the [appellant] references the group extensively in the material filed on this motion. In articles posted on the Canuck website, the [appellant] was the subject of disparaging and racist comments”. Referring to that and some judicial criticism, he concluded that there was no evidence that any damage to the appellant’s reputation was caused by the respondents, as opposed to other sources.
[92] The appellant also argues that the value of the expressions of the respondents was reduced given the circumstances under which they were made, including what he says was the respondents’ malice toward him. However, the motion judge made no finding of malice, and no error in that conclusion has been shown.
[93] The motion judge made no reversible error in the weighing exercise under s. 137.1(4)(b) in concluding that the harm to the public in limiting expression outweighed any harm that the appellant would suffer if the action was not permitted to continue. I would not interfere with his exercise of discretion. . Li v. Barber
In Li v. Barber (Ont CA, 2025) the Ontario Court of Appeal dismissed a class action appeal from an interlocutory pre-certification order that dismissed the defendant's CJA 137.1 SLAPP motion, here where plaintiff Ottawa neighbours sued for private and public nuisance for trucker's protest activities.
The court considered the harm-expression balancing [CJA 137.1(4)(b)], here in the context of public protest:[107] The appellants submit the motion judge erred in his analysis of the public interest hurdle contained in CJA s. 137.1(4)(b), which provides, in part, that:(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,
....
(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. [108] In Pointes Protection, the Supreme Court described the weighing exercise set out in s. 137.1(4)(b) as the “core” or “crux” of the s. 137.1 analysis, because it “is open-endedly concerned with what is at the heart of the legislation at issue and anti-SLAPP legislation generally: the weighing of the public interest in vindicating legitimate claims through the courts against the resulting potential for quelling expression that has already been determined under s. 137.1(3) to be related to a matter of public interest”: at paras. 33, 62, and 82.
[109] As the Supreme Court further observed at para. 81 in Pointes Protection:[T]he open-ended nature of s. 137.1(4)(b) provides courts with the ability to scrutinize what is really going on in the particular case before them: s. 137.1(4)(b) effectively allows motion judges to assess how 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 democracy. ....
[115] I would go further to state that I agree with the motion judge’s conclusion that it is in the public interest for the questions of the competing interests raised by this proceeding to be determined by the courts.
[116] Section 137.1 applies to public interest expressive conduct in a large variety of circumstances, including political protest in public places such as occurred in the present case. Earlier in my judicial career I decided a case that raised similar issues about the interplay between political protest and the use of public spaces. In Batty v. Toronto (City), 2011 ONSC 6862, 108 O.R. (3d) 571, which was also known as the Occupy Toronto case, protesters had turned a large downtown public park into a tent-city political protest site. After the lapse of a month, the City of Toronto sought to evict them from the park. The protesters challenged the eviction notice in court.
[117] In Batty, I opened my reasons with the suggestion that the interplay between public political protest and its impact on the community in which the protest takes place raises two fundamental questions:How do we live together in a community? How do we share common space? [118] I ventured that guidance on how to answers those fundamental questions can be found in the Preamble to our Canadian Charter of Rights and Freedoms. I suggested the Preamble identified two principles of practical political philosophy that govern public political interactions amongst Canadians: first, as human beings, when dealing with our fellow citizens, whether we are part of the governed or part of those who govern, we all must display humility; and, second, we are not unconstrained free actors but must all live subject to some rules. While through our adoption of the Charter Canadians have placed great emphasis on the liberty of the individual – including the right to robust and, indeed, challenging political expression – at the same time the Charter reminds us that individual action must always be alive to its effect on other members of the community since limits can be placed on individual action as long as they are “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.[21]
[119] The weighing that lies at the core of s. 137.1, when applied to legal proceedings that involve political expression in public places, in a sense is a practical manifestation of the larger question about our political interaction as Canadians, namely how do we live together in a community? I think the motion judge’s reasons capture the essence of that question, as expressed in the weighing exercise that lies at the heart of the statutory provision. As well, I agree with him that is in the public interest for the questions regarding the competing interests raised in this proceeding be determined by the courts. Accordingly, I see no basis for appellate intervention in the weighing exercise he performed under s. 137.1(4)(b). . Benchwood Builders, Inc. v. Prescott
In Benchwood Builders, Inc. v. Prescott (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal, this from a defendant-successful SLAPP CJA s.137.1 motion.
Here the court considers the harm-expression aspect of the anti-SLAPP motion test:(a) The Governing Principles Underpinning s. 137.1(4)(b)
[62] The public interest weighing stage is the crux of the anti-SLAPP analysis.[33]
[63] Unlike the initial public interest requirement under s 137.1 (3), the focus at this stage is “what is really going on” in the case; it is necessary to assess the quality of the expression, including the motivation behind it, the medium through which it was expressed, and its subject matter.[34]
[64] The closer an expression is to any of the fundamental values of s. 2(b) of the Charter – freedom of thought, belief, opinion and expression – the greater the public interest will be in protecting it.[35] The cases have identified several factors:. Personal attacks and defamatory statements are only remotely related to these core values.[36] Consequently, there is less public interest in protecting these types of expressions.[37]
. Statements that are exaggerated or inaccurate, or contain deliberate misrepresentations also reduce the public interest protection afforded to those expressions.[38]
. Expressions made for the purpose of interfering with another’s ability to express their views may also attract less public interest protection.[39]
. The motivation behind the subject expressions can lower the public interest in protecting the expression.[40]
. The presence of “classic SLAPP” indicia, which include: 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.[41] (b) Application of the Governing Principles to this Appeal
[65] The motion judge undertook the analysis required by s. 137.1(4)(b) in case the analysis leading her to dismiss the action under s. 137.1(4)(a)(ii) – no valid defence – was wrong. She went on to find that Benchwood had failed to establish that any harm suffered as a result of the Homeowners’ defamatory statements was serious, because there were “other factors that may have had an effect on [Benchwood’s] reputation,” citing Pointes, at para. 72: “[E]vidence of a causal link between the expression and harm will be especially important where there may be sources other than the defendant’s expression that may have caused the plaintiff harm.”
[66] As the motion judge noted, one key problem for Benchwood is that several of the negative events cited as harming Benchwood’s business seem to have preceded the Homeowners’ postings, including the non-renewal of Benchwood’s membership in the Niagara Home Builders’ Association in October 2020, which came about as the result of customer complaints. Further, the harms asserted, such as contract cancellations, were not backed up by evidence that the Homeowners’ postings were the cause. The Benchwood firm “appears to be doing well”.
[67] The Homeowners’ statements concerned a home renovation gone wrong. The postings did not relate to a matter of public interest or to safeguarding the fundamental value of public participation in democracy, to which personal attacks and defamatory statements are only remotely related. This was a private dispute. I repeat what this court said in Grist: “the resolution of purely private disputes between more or less equals – disputes that have no immediate bearing on the rights or obligations of others – can seldom be a matter of public interest.” These words also capture this dispute.
[68] There is little here partaking of classic SLAPP indicia – no power imbalance, no history of Benchwood using litigation to silence critics, although there is some doubt about whether the damages claimed are more than merely nominal.
[69] Then there is the presence of malice. The motion judge addressed this question squarely:The plaintiffs have alleged malice on the part of the defendants in making the impugned statements. A general plea of malice without further particulars is not sufficient. In my view, I am satisfied that the dominant motive for the defendants to post the comments they did was as a warning to other consumers after they saw photos of their home posted on the plaintiffs’ [Benchwood’s] social media. [70] With respect, this analysis falls into the problems with s. 137.1(4)(a)(ii) in the context of a defamation action that I raised earlier at paras. 53 to 56. The interest in protecting the expression is reduced by personal attacks and defamatory statements. Statements that are exaggerated, inaccurate or contain deliberate misrepresentations also reduce the public interest in protecting them. Perhaps the Homeowners’ dominant motive was to warn other consumers. But that was not their only motive. Consider these statements: Ms. Prescott posted that Mr. Slaven and his subcontractors were “in on this dishonest operation together” and “operate in a dishonest manner;” Mr. Green referred to Mr. Slaven as “a miserable con artist” and a “dirtbag”, and accused him of threatening women and making false assault charges against women. The statements themselves appear to be particulars of malice. The accusations go well beyond a complaint about Benchwood walking off the job and doing some of its work poorly.
[71] This is a case in which the straight logic of a private dispute should apply. Section 137.1 does not apply. There is no reason to stop the Benchwood defamation action from proceeding. The tension between reputation and free speech that is endemic to anti-SLAPP motions resolves by giving priority to reputation in this case.
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