Jan 6, 2020

BLANEY'S APPEALS: COURT OF APPEAL SUMMARIES (DECEMBER 30, 2019 – JANUARY 3, 2020)

Ontario College of Teachers v. Bouragba, 2019 ONCA 1028 (CanLII)

[Lauwers, Fairburn and Zarnett JJ.A.]

Counsel:

AB, acting in person

Christine Lonsdale and Charlotte-Anne Malischewski, for the respondent

Keywords: Tort, Defamation, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685

Facts:

AB is a member of the Ontario College of Teachers (the “College”) and was a member of the College’s Council from July 1, 2012 to October 2, 2014, when he resigned. AB sent several communications to past and present members of the Council, the Attorney General of Ontario, and the Minister of Education advocating for a public inquiry into a wide range of alleged misconduct on the part of the College and people affiliated with it. The College sued, alleging that the communications were defamatory.

AB brought a motion to dismiss the defamation lawsuit under the Anti-SLAPP provisions set out in s. 137.1 of the Courts of Justice Act. The motion judge denied AB’s motion on the ground that he had not discharged his burden of proving that the defamation proceeding arose from an expression that related to a matter of public interest. AB appealed.

Issue:

(1) Did the motion judge err in denying AB’s motion?

Holding:

Appeal allowed.

Reasoning:

(1) Yes. Although the motion judge adverted to the requirement to view the communications objectively, she did not properly apply the test. Viewed objectively, and divorced from any consideration of the merits or manner of expression and the motive of the speaker, the Court found that the communications could not be reasonably said to relate solely to “private grievances” and the motion judge’s finding to this effect were a palpable and overriding error.

The Court also noted that the finding appeared to have been impermissibly tainted by a consideration of AB’s motive. At the first threshold step of the analysis, in assessing whether the expression is a matter of public interest under s. 137.1(3) of the Courts of Justice Act, the court is not to consider the motivations of the allegedly defamatory speaker. Motivations do play a role in the third step relating to the “public interest hurdle”. However, the Court found in this case that the motion judge appeared to have taken AB’s motivations into account in concluding, at step one, that AB was expressing “private grievances,” so that the public interest element had not been satisfied.

Further, the motion judge misapprehended the test under s. 137.1 as set out in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685 (“Pointes”). AB’s communications were mixed, but many elements manifestly engaged the public interest. Whether those elements were sufficient to attract the protection of s. 137.1 should have been assessed further at the second step, the “merits-based hurdle,” and at the third step, the “public interest hurdle.” However, the motion judge stopped her analysis at the first step and did not proceed to the second and third steps of the Pointes analysis.

The Court was reluctant to carry forward the reasoning process required by s. 137.1 on appeal without full argument on the “merits-based hurdle” and the “public interest hurdle,” and in the absence of careful analysis by a motion judge. Therefore, the appeal was allowed and the appellant’s motion was remitted to the Superior Court to be heard by a different judge.

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