[1]              There are five motions before the court, brought by (i) the defendants Kristyn Wong-Tam (Wong-Tam) and Paul Ainslie (Ainslie), (ii) the defendant Maria Rizzo (Rizzo), (iii) the defendant Ida Li Preti (Li Preti), (iv) the defendants Norman Di Pasquale (Di Pasquale) and Markus de Domenico (de Domenico), and (v) the defendants Yahoo Canada Corp. (Yahoo Canada)[1] and Elizabeth Di Filippo (Di Filippo), collectively referred to as the Yahoo Defendants.

[2]              In each of those motions, the defendants ask the court, under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, to dismiss the present defamation action (the Action) brought by the plaintiffs, Joseph Volpe (Volpe) and M.T.E.C. Consultants Ltd., which operates as Corriere Canadese (Corriere), an Italian-Canadian newspaper.

[3]              The defendants submit that the Action is a strategic lawsuit against public participation (“SLAPP”). The s. 137.1 motion is commonly referred to as an “anti-SLAPP” motion.

[4]              The defendants Wong-Tam and Ainslie are elected councillors representing Wards 13 and 24 respectively of the City of Toronto (the City).

[5]              The defendants Rizzo, Di Pasquale, de Domenico, and Li Preti, are elected trustees of the Toronto Catholic District School Board (TCDSB) representing Wards 5, 9, 2, and 3 respectively of the City.

[6]              The defendant Yahoo Canada operates a website (the Yahoo Website) where it publishes news, finance, sports, style and entertainment content by its own staff, freelancers, and third-party content providers. Di Filippo is a journalist employed by Yahoo Canada as a Lifestyle Editor.

[7]              In a series of 28 articles written by Volpe over a 12 week period between October 17, 2020, and January 8, 2021, and published in Corriere (the Initial Articles), Volpe strongly opposed various positions taken by the defendant trustees with respect to issues affecting the LGBTQ2S+ community in the TCDSB. In those articles, Volpe labelled the defendant trustees as “virtue-signalling thugs”, a “rat pack”, “terrorists”, and “buffoons”.

[8]              In the Initial Articles, Volpe made numerous comments about the LGBTQ2S+ community, including the following:

[9]              On January 8, 2021, Volpe published an article (the YouthLine Article) in which he criticized the defendant trustees for their support of a link on the TCDSB website to the Lesbian Gay Bi Trans Youth Line (LGBT YouthLine) website, operated by a youth-led, non-profit organization that provides resources, anonymous peer support and referrals to LGBTQ2S+ youth.

[10]         In the YouthLine Article, Volpe made the following comments:

[11]         On the same day as the YouthLine Article was published, the TCDSB removed the LGBT YouthLine link from its website. After criticism of that decision by both LGBT YouthLine and social media, and media reports including an article published on the Yahoo Website on January 12, 2021 (the Yahoo Article), the TCDSB reversed its decision and reinstated the link to the LGBT YouthLine website on January 13, 2021.

[12]         Following the YouthLine Article, the defendant councillors and trustees responded, by

[13]         In the above statements, the councillor and trustee defendants strongly disagreed with the statements of Volpe in the Initial and YouthLine Articles. The defendants forcefully advocated in support of their view that the LGBT YouthLine link was a vital resource for LGBTQ2S+ students at the TCDSB, and that the Motion was appropriate because, in their opinion, public taxpayer funds should not be used to support newspapers which expressed the views in the Initial and YouthLine Articles.

[14]         During the course of the comments, the councillor and trustee defendants stated their view that Volpe and Corriere were homophobic, transphobic, and anti-LGBTQ2S+.

[15]         In the Yahoo Article, Di Filippo stated that Volpe had “well documented anti-LGBTQ+ views”.

[16]         I refer to the impugned statements in the Tweets, Motion, Joint Letter, Press Conference Statements, and Yahoo Article as the “Impugned Statements”.

[17]         The plaintiffs then brought the Action, issuing a statement of claim on March 5, 2021, and a “Superseding Statement of Claim” on April 12, 2021, seeking more than $30 million in damages. The moving party defendants have brought the present motions to dismiss the Action as a SLAPP action.

[18]         For the reasons that follow, I grant the motions and dismiss the Action. I find that:

[19]         M.T.E.C. Consultants Ltd. carries on business as Corriere, an Italian and English daily newspaper that publishes a hard copy and online.

[20]         Volpe is the President and Publisher of Corriere, and regularly writes articles for the newspaper. He is a former politician, as a member of Parliament from 1998 to 2011, and a cabinet minister from December 2003 to February 2006.

[21]         Wong-Tam is the City councillor representing Ward 13, first elected in 2010. 

[22]         Ainslie is the City councillor representing Ward 24, first elected in 2006.

[23]         Rizzo is the TCDSB trustee representing Ward 5, first elected in 2003.

[24]         Di Pasquale is the TCDSB trustee representing Ward 9 since October 2018.

[25]         De Domenico is the TCDSB trustee representing Ward 2 since October 2018.

[26]         Li Preti is the TCDSB trustee representing Ward 3 since October 2018.

[27]         Yahoo Canada operates the Yahoo Website where it publishes news, finance, sports, style, and entertainment content by its own staff, freelancers, and third-party content providers. 

[28]         Di Filippo is a journalist employed by Yahoo Canada as a Lifestyle Editor. Her role includes writing and editing content for the Yahoo Website. 

[29]         Section 131 of the CTA provides:

[30]         On October 2, 2019, the City approved the HRAP, which states, “[t]he City of Toronto will not tolerate, ignore, or condone discrimination or harassment and is committed to promoting respectful conduct, tolerance and inclusion.” Among others, the HRAP applies to all of the City’s elected officials.

[31]         The HRAP mandates that all contracts with third party individuals and organizations delivering services to the City must include a signed copy of the Declaration and are subject to contract provisions regarding consequences for non-compliance.

[32]         The TCDSB has approximately 90,000 students and is the largest Catholic school board in Canada. They are “separate schools” whose existence is protected by the Constitution Act, 1867. They are operated by civil authorities called separate school boards. TCDSB trustees are elected municipally and are accountable to the provincial government.

[33]         The Education Act, R.S.O. 1990, c. E.2 sets out the duties of a school board trustee. In particular, every school board must (i) “promote a positive school climate that is inclusive and accepting of all pupils, including pupils of any … sexual orientation, gender identity, gender expression” (s. 169.1(1)(a.1) of the Education Act requires that and (ii) “promote the prevention of bullying” (s. 169.1(1)(a.2).

[34]         Under s. 218.1(a) of the Education Act, trustees have the further duty to “maintain focus on student achievement and well-being”.

[35]         The TCDSB is guided by its Code of Conduct, which promotes an “inclusive community rooted in the love of Christ… having due regard to the (a) Teachings of the Catholic Church, as expressed through various documents of the Universal Church, the Bishops of Canada, the Bishops of Ontario, and the Archdiocese of Toronto; (b) Education Act, Sections 1(4); 169.1; 301…”. 

[36]         The Catholic Bishops of Ontario’s “Pastoral Guidelines to Assist Students of Same Sex Attraction” also direct Catholic schools to “consciously create an environment where students who feel marginalized, rejected or vulnerable can experience safe, nurturing, inclusive communities of faith”.

[37]         One of the policies of the TCDSB that trustees are required to uphold and protect is the “Catholic Equity and Inclusive Education Policy,” which states that, “The Toronto Catholic District School Board (the ‘Board’) recognizes that all people are deserving of dignity and are created equal in the image of God, each with inimitable characteristics (Genesis: 1:27). In accordance with the Catholic Faith and the Church’s moral teachings as found in the Catechism and other teachings of the Magisterium, the Board provides an educational environment which supports and embraces diversity within its Catholic community, demonstrates respect for all, and values each as child of God”.

[38]         Trustees also act as education advocates. At the local level, trustees work on behalf of the community and consider the unique needs of their communities when deciding what position to take on any issue. A trustee’s role as an education advocate often extends beyond the boundaries of the district school board and they often liaise with members of government, the school system, and with local organizations or individuals in the community. An important role as a trustee is to maintain a focus on students’ well-being and equity, and to participate in making decisions that benefit the board's entire jurisdiction while representing the interests of their constituents.

[39]         All of the counsellor and trustee defendants have a long history of activism and advocacy in the public interest, particularly with respect to human rights and LGBTQ2S+ issues.

[40]         As part of its response to concerns about bullying and discrimination against LGBTQ2S+ staff and students, the TCDSB created a link on its website to the website for LGBT YouthLine, which is an LGBTQ2S+ youth-led non-profit organization that provides anonymous peer support and referrals, trains youth to provide support to other youth, and provides resources so that LGBTQ2S+ youth can make informed decisions. Its activities include:

[41]         In a series of 28 articles written over a 12 week period between October 17, 2020, and January 8, 2021 (previously defined as the Initial Articles), Volpe strongly opposed positions taken by the defendant trustees relating to the LGBTQ2S+ community in the TCDSB.

[42]         The plaintiffs submit that the only purpose of the Initial and YouthLine Articles was to raise the issue of whether TCDSB policies with respect to the LGBTQ2S+ community were in accordance with Roman Catholic doctrine. I review Volpe’s statements in those articles in some detail below, as they are the bases upon which the defendants made the Impugned Statements describing the plaintiffs, and the Initial and YouthLine Articles, as homophobic, transphobic, and anti-LGBTQ2S+.

[43]         In an article dated October 15, 2020, entitled “Another gadfly soiling the reputation of Catholic institutions”, Volpe criticized the TCDSB for allowing one of its teachers to express concern about trustee Del Grande’s comments in which he compared the inclusion of terms such as gender identity in the TCDSB Code of Conduct to terms such as “bestiality”, “pedophilia”, “cannibalism”, “auto-erotic asphyxiation”, and “auto-vampirism”.

[44]         In the October 15, 2020 article, Volpe inferred that the heterosexual standard of “sexual propriety” he “prefer[red]” would be a “safeguard against predators who would victimize” his children. He wrote:

[45]         In an article dated November 3, 2020, entitled “Pompous and ineligible as Catholic Trustee M de D attempts to ride Minister Lecce”, Volpe criticized de Domenico for his efforts to make public an investigation into Del Grande’s comments. Volpe described de Domenico and his “allies in the LGBTQ+” as “snivellers who hold convicted creator, counsellor to and purveyor of child pornography—former Deputy Minister of Education and special advisor to Kathleen Wynne—as their ‘mentor’” (emphasis added).

[46]         In an article dated November 6, 2020, entitled “Minister Stephen Lecce takes control of the TCDSB”, Volpe described “the LBGQT2+ lobby” as “probably the most intolerant organization around”, and described the four defendant trustees as individuals “to whom radical activist gadflies with their counter-culture Catholicism gravitated” (emphasis added).

[47]         In an article dated December 4, 2020, entitled “Code of conduct thuggery, gangsterism and persecution”, Volpe described those seeking inclusion of LGBTQ2S+ protections in the TCDSB Code of Conduct as “radical activists from the LGBTQ2+ community [who] have launched what can only be described as an all-out witch hunt to eradicate the Catholic ethic from Ontario’s School system” (emphasis added).

[48]         In an article dated December 8, 2020, entitled “Time to put sexualized virtue-signalling thugs in their place”, Volpe:

[49]         In articles written by Volpe dated November 23, December 4, and December 8, 2020, he described one or more of the defendant trustees as “thugs”, “buffoons”, and “gangsters”.

[50]         On November 17, 2020, a tweet was published by @Hashtag Kyle, who commented:

[51]         Pizza Nova immediately withdrew its advertising from Corriere. By a tweet of the same day, Pizza Nova stated:

[52]         On December 8, 2020, Di Pasquale responded to the Volpe article of that date (discussed at para. 48 above) by writing an email to the head of the National Ethnic Press and Media Council (NEPMC) to express his concerns. Corriere is a member of the NEPMC. 

[53]         Later that day, Volpe sent a response to Di Pasquale stating that (i) Di Pasquale engaged in “thuggery”, through “cowardly” conduct and “drive-by smears” demonstrating his “hypocritical concern for the ‘most vulnerable citizens’”. He described Di Pasquale as a “tin pot anti-democrat” who used “gangster tactics”. Volpe warned Di Pasquale to “[t]hink before you soil your pants in front of experienced people”.

[54]         On January 8, 2021, Volpe wrote an article published in Corriere entitled “TCDSB website hosts Pornographic site defended by trustees” (previously defined as the YouthLine Article).

[55]         Volpe acknowledged in cross-examination that there are many positive aspects of the LGBT YouthLine website, including its peer support services, links to third-party resources addressing health and mental health, homelessness, bullying, abuse, violence, and coming out to help LGBTQ2S+ youth struggling with those issues.

[56]         Nevertheless, Volpe stated in his article:

[57]         Volpe implied that the content on the YouthLine website was so inappropriate that “[e]ven the organizers of the site must agree [because] they placed a HIDE button at the top right of the page so that any child can quickly go to a pre-programmed Wikipedia page when an adult comes into the room”.[4]

[58]         On the same day the YouthLine Article was published, the TCDSB removed the link to the LGBT YouthLine website from its own website.

[59]         Wong-Tam became aware of the YouthLine Article. On January 11, 2021, in response to the YouthLine Article and the TCDSB decision to remove the LGBT YouthLine link, Wong-Tam published the following tweets:

[60]         On January 11, 2021, LGBT YouthLine published a statement with respect to the TCDSB’s removal of its link from the TCDSB’s  website (the LGBT YouthLine Press Release). LGBT YouthLine stated that the YouthLine Article was “homophobic, transphobic, and racist”, and criticized the removal of the link as “a validation of homophobia and transphobia by the TCDSB”. LGBT YouthLine stated, inter alia:

[61]         The Yahoo Article reported on the TCDSB’s decision to remove the LGBT YouthLine link from its website, with reference to the LGBT YouthLine Press Release and comments in social media critical of the TCDSB decision. There is no reference in the Yahoo Article to the January 11 Tweets.

[62]         Prior to writing the Yahoo Article – and given LGBT YouthLine’s assertion that the TCDSB referenced the YouthLine Article when providing notice of its decision – Di Filippo reviewed the YouthLine Article, a selection of other articles Volpe had published in Corriere about the TCDSB and LGBTQ2S+ issues, and publicly available articles relating to Volpe’s position on LGBTQ2S+ issues during his time in Parliament.

[63]         The Yahoo Article:

[64]         The quote in the Yahoo Article headline (“Put it back and apologize”) was a verbatim comment of a tweet in response to the removal of the link. The article also quoted the comments of:

[65]         In the Yahoo Article, the only words complained of are “Joe Volpe… [has] well documented anti-LGBTQ+ views”, which appear in the following sentence:

[66]         On January 13, 2021, the day after the Yahoo Article was published and two days after the LGBT YouthLine Press Release, the TCDSB reinstated the LGBT YouthLine link to its website. LGBT YouthLine did not alter or remove any content or external links on its website.

[67]         TCDSB Director of Education Brendan Browne made a public statement the next day in which he recognized and acknowledged the “impact that [the removal of the link] may have had on the [TCDSB’s] 2SLGBTQ youth and community”, commenting that “we are in education and this is a profound teachable moment”.[5]

[68]         On January 14, 2021, Wong-Tam responded to a tweet authored by de Domenico and tweeted:

[69]         Counsel for the plaintiffs, Paul Slansky (Slansky), sent a letter to Wong-Tam dated January 15, 2019 [sic - presumably intended to be dated January 2021] identifying himself as counsel for Volpe and demanding a retraction and apology by end of business day on January 19, 2021, failing which Volpe would initiate legal action. This letter did not come to Wong-Tam’s attention until she received a second letter from Slansky on January 29, 2021.

[70]         In her capacity as a City councillor, Wong-Tam proposed a notice of motion before City Council on January 28, 2021 (previously defined as the Motion), returnable before City Council on February 2, 2021.

[71]         At the outset, the Motion specifically indicated: “The City of Toronto’s [HRAP] states that we ‘will not tolerate, ignore, or condone discrimination or harassment and is committed to promoting respectful conduct, tolerance and inclusion’”.

[72]         The Motion sought relief, including that:

[73]         In the Motion, Wong-Tam made the following comments, with footnote links to the impugned Volpe articles:

[74]         In the Motion, Wong-Tam asked “that the City of Toronto advertise broadly in different Italian language media outlets that have signed and actively honour our Declaration of Compliance with Anti-Harassment/Discrimination Legislation & all other related City policies”.  

[75]         The Motion also referred to Pizza Nova’s statement on November 17, 2020 that it was cancelling its advertisements with Corriere.

[76]         Ainslie seconded the Motion.

[77]         On January 29, 2021, Wong-Tam received Slansky’s second letter providing her with notice under s. 5 of the Libel and Slander Act, R.S.O. 1990, c. L.12, and setting out Volpe’s position regarding the alleged defamatory nature of both the Motion and the Tweets. The plaintiffs again threatened legal action should Wong-Tam fail to publish a retraction and apology.

[78]         On or about February 1, 2021, the defendant trustees Rizzo, Di Pasquale, de Domenico, and Li Preti sent the Joint Letter, addressed to Mayor Tory and City Council in support of the Motion. The trustees stated:

[79]         The City of Toronto made the Joint Letter available on its website at some point after it was submitted.

[80]         On March 9, 2021, Wong-Tam led a virtual YouTube press conference (the Press Conference) in support of the pending Motion on March 10, 2021 before City Council.[6] A number of community advocates, as well as Ainslie, Rizzo, Di Pasquale, and de Domenico were present. 

[81]         The impugned statements of Wong-Tam at the Press Conference are:

[82]         The impugned statements of Ainslie at the Press Conference are:

[83]         The impugned statements of Rizzo at the Press Conference are:

[84]         The plaintiffs also impugn the following comments by Di Pasquale at the Press Conference:

[85]         On March 10, 2021, City Council unanimously passed an amended version of the Motion (the City Council Decision).  The City Council Decision states as follows:

[86]         The City Council Decision did not require the City to cease its advertising in Corriere.

[87]         The plaintiffs issued a statement of claim on March 8, 2021, and issued a “Superseding Statement of Claim” on or about April 12, 2021.

[88]         All of the defendants led evidence as to their good faith in making the Impugned Statements.

[89]         The evidence of the councillor defendants is that they made their comments in good faith and did not intend to injure the plaintiffs. Rather, they brought attention to the LGBT YouthLine incident and the plaintiffs’ publications because they believed it was incumbent on them as City councillors to bring awareness to what they viewed as discrimination and harassment.

[90]         Rizzo’s evidence is that when writing the Joint Letter and making her Press Conference Statements, she believed that she acted pursuant to her statutory duty to promote a positive environment at the TCDSB, and to ensure students who identify as LGBTQ2S+ felt included and accepted within the Catholic school system. Rizzo’s evidence is that she has a sincere belief in her moral duty to ensure that students of the TCDSB feel welcomed and safe in their school environment. She stated on cross-examination:

[91]         Rizzo’s evidence is that “it was, and continues to be, [her] sincerely held belief, based on the articles written by Mr. Volpe and published by the Corriere that criticize advancing issues of LGBTQ2S+ inclusion and support at the TCDSB, that the plaintiffs are discriminatory, homophobic and transphobic” and that those articles “further marginalize LGBTQ2S+ students, staff and families of the TCDSB”.

[92]         The evidence of Di Pasquale and de Domenico[7] was that their conduct was motivated by their understanding of a trustee’s role. They believe that trustees act as education advocates who work on behalf of the community and consider the unique needs of their communities when deciding what position to take on any issue. 

[93]         The evidence of Di Pasquale and de Domenico is that a trustee’s role as an education advocate often extends beyond the boundaries of the district school board and that a trustee often liaises with members of government, the school system, and with local organizations or individuals in the community.  An important role as a trustee is to focus on students’ well-being and equity, and to participate in making decisions that benefit the board's entire jurisdiction while representing the interests of their constituents.

[94]         Both Di Pasquale and de Domenico held the good faith opinion that the articles by Volpe and published by Corriere were homophobic and transphobic and harmed LGBTQ2S+ students and staff within the TCDSB. They believed the articles fostered discrimination and intolerance and caused LGBTQ2S+ students and staff to feel unsafe.

[95]         Li Preti felt and continues to feel strongly that the plaintiffs’ publications cause harm to LGBTQ2S+ students and staff of the TCDSB and that, in promoting or excusing discrimination, they expose these students to bullying, humiliation and exclusion.  Her understanding is based on her engagement with students, staff and other stakeholders of the TCDSB as well as her review of reports and research with respect to this issue.

[96]         Di Filippo’s evidence was that she “wrote the Yahoo Article in good faith to inform readers about an issue of public interest and importance, and without malicious intent. I did not intend to interfere with the contractual obligations or economic interests of the Plaintiffs”.

[97]         The evidence as to any monetary damages arising from the Impugned Statements is contained in the following assertions in the Volpe affidavit:

[98]         The plaintiffs produced no documentary evidence of any contract it had which was allegedly cancelled. The plaintiffs produced no evidence as to its advertising revenue from the City, or general advertising revenue, either before or after the Motion. While calculations of financial losses totalling $11.8 million are alleged at paras. 145-49 of the Superseding Statement of Claim, there is no such evidence before the court on the motion.

[99]         The leading decision on the applicable law for anti-SLAPP motions is 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22. Both parties rely on the principles in that decision and I refer to them often in these reasons.

[100]      The purposes of ss. 137.1 through 137.5 are set out in s. 137.1(1) which provides that:

[101]      The court in Pointes reviewed the history of s. 137.1, noting that an Anti-SLAPP Advisory Panel (the Panel) had been created to advise the government on “how to respond to the proliferation of SLAPPs”, which “culminated in the Anti-Slapp Advisory Panel: Report to the Attorney General (‘APR’), which was published in October 2010”: at para. 7.

[102]      In Pointes, the court noted the particular importance of the purposes of anti-SLAPP motions given the express statement of such principles under s. 137.1(1). Côté J. held, at para. 11:

[103]      The court in Pointes held that “the Panel and its APR are persuasive authority for the purposes of statutory interpretation”: at para. 14. Côté J. relied on the following excerpts from the APR (quoted verbatim from Pointes):

[104]      Côté J. concluded, at para. 14:

[105]      Consequently, when interpreting s. 137.1, the court must take into account its legislative purposes as set out in s. 137.1(1), including the background comments of the Panel in the APR.

[106]      Under s. 137.1, the following process applies to determine whether an action should be dismissed as anti-SLAPP litigation:

[107]      I now address the relevant case law and evidence for each of the above steps in the process.

[108]      The law is settled that under s. 137.1(3), the onus is on the moving party to establish on a balance of probabilities, that “the proceeding arises from an expression made by the person that relates to a matter of public interest”. The court held in Pointes, at para. 23:

[109]      Consequently, the moving party must establish on a balance of probabilities that (i) the moving party made an “expression”; (ii) the proceeding “arises from” that expression; and (iii) the expression relates to a matter of “public interest”.

[110]      I address each of these requirements below, addressing both the relevant law and the application of the law to the facts of the present case.

[111]      “Expression” is defined in s. 137.1(2) as “any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity”.

[112]      The court in Pointes held that: “[W]hat does ‘expression’ mean … is not in need of further clarification, as the text makes it abundantly clear that ‘expression’ is defined expansively”: at para. 25.

[113]      There is no dispute in the present case that all of the Impugned Statements arose out of expressions made by the defendants.

[114]      The January 11 and 14 Tweets, the Motion, the Joint Letter, the Press Conference Statements, and the Yahoo Article were all communications, and, as such, constitute “expressions” under s. 137.1(3).

[115]      The requirement that the proceeding “arises from” an expression provides an expansive view of any litigation in which its genesis is a matter of expression, regardless of how the claim is framed. The court held in Pointes, at para. 24:

[116]      There is no dispute in the present case that the Action arises out of the expressions in the Impugned Statements.

[117]      The defamation claim, by definition, arises from the Impugned Statements.

[118]      The impugned statements in the Tweets, Motion, and Press Conference are all “causally related to the other claims” (misfeasance in a public office, inducing breach of contract, and wrongful interference with economic relations). The expression of the defendants’ views through the various forms is the basis for all of the claims advanced by the plaintiffs.

[119]      The plaintiffs acknowledge that the January 11 Tweets and the Yahoo Article, which addressed the issue of the removal and reinstatement of the LGBT YouthLine link, were expressions that relate to a matter of public interest.

[120]      However, the plaintiffs submit that the proceedings relating to the January 14 Tweets, the Motion, the Joint Letter, and the Press Conference Statements do not arise from expressions of public interest. The plaintiffs submit that:

[121]      I do not agree. For the reasons I discuss below, I find that the impugned expressions from the January 14 Tweet, the Motion, the Joint Letter, and the Press Conference Statements were all matters of public interest, since they related to (i) the use of public funds for City advertising, and (ii) protection of the interests of constituents (including LGBTQ2S+ students, parents, and teachers) pursuant to the statutory and other duties of the councillors and trustees.

[122]      I first review the applicable law and then apply the law to the facts of the present case.

[123]      The burden to establish that the expression arises out of a matter of public interest “is purposefully not an onerous one”: Pointes, at para. 28. Côté J. stated at paras. 30-31:

[124]      I summarize the relevant principles concerning the “public interest” requirement as follows:

[125]      The councillors’ expressions arising in the Tweets, the Motion, and the Press Conference Statements were made in such role as advocates for the interests of their constituents, as set out in:

[126]      The councillors’ expressions related to both their own and the City’s commitment to preventing and addressing harassment and discrimination, as well as respecting the dignity and rights of the LGBTQ2S+ public they serve. There is a public interest in supporting groups who face discrimination and harassment. Consequently, “the expression pertains to any matter of public interest, defined broadly”: Pointes, at para. 28.

[127]      The councillors’ expressions also related to the City’s use of taxpayers’ money. The City’s advertisements in Corriere are publicly-funded. The public has an interest in how the City uses its tax revenue. Consequently, the expressions relate to the “establishment, use, allocation and maintenance of shared public goods, and [are] therefore protect[ed] discussion and advocacy about the distribution of benefits and burdens of social life”: Grist, at para. 19.

[128]      All City residents have a genuine interest in receiving information on the subject matter. of the expression. Such interest is not limited to the segment of the community that includes members of the LGBTQ2S+ community, even though such a “segmented” interest would be sufficient:   Pointes, at para. 27.

[129]      Consequently, a broad and liberal interpretation of the councillors’ expression establishes a public interest. It is not a “private” matter of (i) seeking to “censor” a community newspaper, or (ii) asserting homophobic conduct in a private context.

[130]      Corriere remains free (and has continued) to publish any statements on the issues it considers appropriate. None of the defendants brought a defamation claim against Corriere. Rather, the issue was the protection of the City’s residents under the policies promoted in the HRAP, and the use of public funds to advertise in a publication which the councillors believed had views which were inconsistent with the HRAP and the best interests of City residents.

[131]      For the above reasons, I find that Wong-Tam and Ainslie have met their burden under s. 137.1(3).

[132]      All of the trustees collectively made the impugned statements in the Joint Letter.

[133]      Only Rizzo and Di Pasquale’s statements at the Press Conference are impugned. Li Preti did not attend the Press Conference and de Domenico’s statements at the Press Conference are not impugned.

[134]      The statements by the trustees in the Joint Letter and Press Conference were made in support of a public decision to be made by the City as to whether it would continue to spend taxpayer dollars to advertise in a publication with articles written by Volpe that the trustees believed were homophobic, transphobic, and anti-LGBTQ2S+.

[135]      Consequently, as with the councillors, the Joint Letter and Press Conference Statements related to the decision by the City in respect of its use of funds and its association with an allegedly homophobic publication. Such expressions relate to the “establishment, use, allocation and maintenance of shared public goods,” and are therefore protected as “discussion and advocacy about the distribution of benefits and burdens of social life”: Grist, at para. 19.

[136]      The treatment of LGBTQ2S+ students in the TCSDB is a matter of public interest. The trustees believed that Volpe and Corriere were writing homophobic, transphobic, and anti-LGBTQ2S+ articles which affected their constituents. The trustees’ expression raised those public concerns, consistent with their role as elected officials (like the councillors) to protect the interests of their constituents. Such conduct affects the safety and well-being of TCDSB students, and as such, it is in the public interest that the trustees can raise such concerns.

[137]      The trustees’ role under the Education Act, TCDSB Code of Conduct, Pastoral Guidelines, and inclusion policies, as set out at paras. 33-37 above, also are a basis of a trustee’s role to raise issues of concern that they believe affect the safety and well-being of any TCDSB student, and in the present case, the LGBTQ2S+ community at TCDSB schools.

[138]      The trustees never attempted to censor Corriere, despite the often intemperate language used by Volpe to describe the trustees and their conduct. The trustees raised concerns in relation only to the issue before the City on the Motion, which was a matter of public interest.

[139]      For the above reasons, I find that the trustee defendants satisfied the requirement under s. 137.1(3) that the proceeding against them arises from an expression that relates to a matter of public interest.

[140]      Before considering the specific issues of the merits of the causes of action pleaded and the applicable defences before the court, I make the following general comments on the burden of proof under s. 137.1(4) for the plaintiff to establish both that (i) “the proceeding has substantial merit” (s. 137.1(4)(a)(i)), and (ii) “the moving party has no valid defence in the proceeding” (s. 137.1(4)(a)(ii)).  

[141]      The legal principles governing the burden of proof under s. 137.1(4)(a) are set out in Pointes and are not contested by the parties. I summarize the applicable principles as follows:

[142]      Summarizing the above principles, a plaintiff can only meet the burden under s. 137.1(4)(a) if the plaintiff can establish that, based on the applicable law and evidence before the court, it weighs more in favour of the plaintiff that (i) the proceeding has substantial merit and (ii) the moving party has no valid defence in the proceeding. If the plaintiff fails either of those evidentiary burdens, the action shall be dismissed under s. 137.1(3) (if the defendant establishes that the proceeding arises from an expression made by the defendant that relates to a matter of public interest).

[143]      The plaintiffs rely upon four principal causes of action to support their claim: (i) defamation, (ii) misfeasance in public office, (iii) inducing breach of contract, and (iv) wrongful interference with economic relations. For the reasons that follow, I find that only the defamation claim has substantial merit under the Pointes test.

[144]      The plaintiffs also rely on an “abuse of authority” claim based on the decision in Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121, although the plaintiffs acknowledge in their factum that “[i]t is unclear whether abuse of authority remains as an independent tort or whether it is subsumed by Misfeasance of Public Office”.  While I find that the abuse of authority doctrine set out in Roncarelli has been subsumed in the tort of misfeasance in public office, I find that in any event, the plaintiffs have not established a real prospect of success even if such a separate claim could be made.

[145]      I address each of the causes of action below.

[146]      To succeed on a claim for defamation, the plaintiff must prove that:

[147]      A defamatory statement is one that causes the plaintiff “to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem”: Vander Zalm v. Times Publishers, 1980 CanLII 389 (B.C.C.A.), at para. 4.

[148]      The plaintiffs submit that the determination under s. 137.1(4)(a)(i) of whether a defamation claim has substantial merit requires only a review of the Impugned Statements to determine if a finding of defamation weighs in favour of the plaintiff. Under this approach:

[149]      The defendants do not contest that the analysis of the validity of the defences take place under s. 137.1(4)(a)(ii). I agree.

[150]      Such an approach is reasonable. Otherwise, the requirements under s. 137.1(4)(a) become conflated, if words which are defamatory would not be found to establish “substantial merit” of the claim if there was a real prospect of success for a “valid defence”. Such an approach defeats the legislative intent of having separate requirements under ss. 137.1(4)(a)(i) and (ii) that the plaintiff satisfy the court that there are grounds to believe both that (i) the claim has substantial merit and (ii) there are no valid defences.

[151]      However, the defendants also submit that the court should find that the defamation claim has no substantial merit, based on the defendants’ submission that the plaintiffs would have a low reputation because of the “self-inflicted” reputational damage from Volpe’s statements in the Initial and YouthLine Articles. The defendants submit that “[a]ny negative effect on the plaintiffs’ reputation was of their own doing and as a result of the articles they chose to publish”.

[152]      I do not agree that such an approach is appropriate in the present case. Consequently, I do not address whether such a position could be considered if the evidence supported a conclusion that a defendant’s impugned statements could not have lowered the plaintiff’s reputation any further.

[153]      In the decision of the Court of Appeal in Pointes, reported at 2018 ONCA 685 and upheld by the Supreme Court, the court cautioned against the motion judge taking a “deep dive” on the merits of the claim and the defences, which is the role of the trial judge. The court held, at para. 78:

[154]      Consequently, the courts have not engaged in a “deep dive” into the reputation of the plaintiff outside the scope of the alleged defamation (an assessment that would be required at trial). In Rebel News Network Ltd. v. Al Jazeera Media Network, 2021 ONSC 1035, the motion judge held, at paras. 41-43:

[155]      The Court of Appeal in Levant v. DeMelle, 2022 ONCA 79,[8] did not interfere with the motion judge’s decision that the plaintiff’s defamation claim had met the substantial merit test under s. 137.1(4)(a)(i), despite the defendants’ reliance on the plaintiff’s allegedly low reputation.

[156]      A similar approach has been taken by the courts in other cases where the views of the plaintiffs were well-known, with the courts (i) finding that the test under s. 137.1(4)(a)(i) had been met to establish the substantial merit of the defamation claim, but (ii) granting the anti-SLAPP motion on the basis of the plaintiff failing to (a) establish under s. 137.1(4)(a)(ii) a real prospect of success that there are no valid defences and (b) satisfy the court on the weighing test under s. 137.1(4)(b).

[157]       By way of example in the following cases:

[158]      In the present case, I follow the above approach and do not assess the strength of the plaintiffs’ reputation in my analysis under s. 137.1(4)(a)(i).

[159]      On the evidence, it is known that some individuals and Pizza Nova had commented on their view as to the homophobic and transphobic nature of the Initial and YouthLine Articles. However, there is insufficient evidence to establish such a low reputation that any alleged defamation could not have lowered the plaintiffs’ reputation.

[160]      For the reasons I discuss below, I find that on the basis of the applicable law and the evidence, the plaintiffs’ defamation claim has substantial merit.

[161]      There is a factual basis, supported by the applicable law, that establishes that the claims weigh in their favour (subject to the issue of valid defences and the weighing test addressed below).

[162]      I find that (i) the “sting” of the Impugned Statements was that the plaintiffs were homophobic, transphobic, and anti-LGBTQ2S+ and (ii) such words “tend to lower [the plaintiffs’] reputation in the eyes of a reasonable person”.

[163]      By way of example, summarized from the evidence above:

[164]      The above evidence provides sufficient support that the Impugned Statements were published and refer to the plaintiffs.

[165]      I also find that it weighs in favour of the plaintiffs that a court would find that the Impugned Statements are defamatory, i.e., that they tend to lower the reputation of the plaintiffs. The above examples of comments, read collectively, establish that the sting of the defendants’ comments was that the plaintiffs were homophobic, transphobic, and anti-LGBTQ2S+. Comments with that sting tend to lower the reputation of the plaintiffs.

[166]      The defendants submit that “[i]t is not defamatory to draw attention to a person’s own statements”, relying on the decision in Wright v. Van Gaalen, 2011 BCSC 707.

[167]      However, in Wright, Schultes J. held, at para. 112, that “[o]bviously, merely forwarding someone's own comments in an email cannot in itself amount to defamation - it must be found in something actually written by the person who forwarded it”. In the present case, as set out above, the defamation claim is grounded in the Impugned Statements, all of which commented on the concerns arising from the plaintiffs’ articles.

[168]      Further, as in Mondal, the plaintiffs were not only “forwarding” Volpe’s comments about the LGBTQ2S+ community, but did so with “accompanying” commentary (much more so than the singe sentence in Mondal) “that draws further attention” to the Volpe comments, and as such, “cannot help but lower the professional and personal reputation” of the plaintiffs: at para. 24.

[169]      Consequently, I follow the approach of the courts as discussed above and find that the plaintiffs have established the “substantial merit” of their defamation claim, i.e., a real prospect of success that weighs in their favour.

[170]      However, as I discuss below, I find that as in Bernier, Mondal, and Levant, the plaintiffs failed to meet the requirements under either s. 137.1(4)(a)(ii) or s. 137.1(4)(b).

[171]      Before addressing the defences to the defamation claim and the weighing test, I briefly review the other causes of action relied upon by the plaintiffs, which I find do not establish a real prospect of success.

[172]      The claim of misfeasance in public office is made against the defendant councillors and the trustees.

[173]      The elements of the tort of misfeasance in a public office are summarized in The Catalyst Group Inc. v. Dundee Kilmer, 2022 ONCA 168, at paras. 12-16, reviewing the seminal case of Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 63.  I adopt the summary of the law as set out in the Wong-Tam and Ainslie factum (footnotes omitted):

[174]      As I discuss at para. 144 above, the plaintiffs also rely on an “abuse of authority” claim based on the decision in Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121, in which the court set out the requirements for the tort as (i) the exercise of government authority by a government actor, (ii) outside the scope of legal authority, and (iii) which intentionally damages a person’s interests: at pp. 158-59.

[175]      The plaintiffs submit that the availability of a claim in abuse of authority, outside the tort of misfeasance in public office, is “uncertain”. I do not agree.

[176]      In Odhavji Estate, at para. 19, the court incorporated its analysis in Roncarelli in its review of the history of the tort of misfeasance in public office. I rely on that analysis to conclude that the tort of abuse of authority does not remain as an independent tort and instead is subsumed by the tort of misfeasance of public office.

[177]      However, the issue is not determinative as the plaintiffs have not established a real prospect of success on an abuse of authority claim (even if available), since the law and evidence do not support a finding that the claim weighs in their favour.

[178]      Consequently, I address the application of the law to the facts of the present case for both the misfeasance in public office and abuse of authority claim.

[179]      There is no evidence that any of the councillors or trustees deliberately engaged in any act that could constitute either misfeasance in public office or an abuse of authority, on the “weighs in favour of the plaintiffs” threshold required under Pointes.

[180]      There is no evidence that any of the councillors or trustees acted outside the bounds of their public functions.

[181]      Under s. 131 of the CTA, the councillors were required to, amongst other things, (i) represent the public and consider the well-being and interests of the City, (ii) develop and evaluate the policies and programs of the City, and (iii) ensure that administrative policies, practices and procedures and controllership policies, practices and procedures are in place to implement the decisions of council.

[182]      The evidence of the councillors is that the Impugned Statements arising from the Tweets, Motion, and Press Conference were made in their good faith efforts to represent their constituents based on their views as to the well-being and best interests of residents of the City.

[183]      The trustees acted in accordance with their duties under the Education Act and under the various policies and codes of conduct governing the TCDSB.

[184]      There is no evidence that any of the trustees engaged in an unlawful act, outside the scope of their duties as trustee, or in bad faith with the intention to harm the plaintiffs. To the contrary, there is nothing unlawful about seeking to protect the interests of LGBTQ2S+ students, parents and teachers in the TCDSB schools.

[185]      The plaintiffs base their claim of “bad faith”, “unlawful” conduct, and “malice”, all on the submission that (i) the councillors and trustees would have known that the effect of their conduct would have been to end City advertising in Corriere, and (ii) such conduct would be a violation of the plaintiffs’ Charter rights to freedom of expression.

[186]      The plaintiffs further submit that such conduct is an act in excess of the councillors’ powers, done for an improper purpose, or a breach of statutory duty.

[187]      I do not agree with the plaintiffs’ submissions.

[188]      The only evidence before the court is that the councillors acted in good faith to address the public interest in having taxpayer funds being used to advertise in a newspaper which the councillors believed to be homophobic, transphobic, and anti-LGBTQ2S+, in a manner contrary to both the HRAP and the interests of the councillors’ constituents.

[189]      The councillor defendants explicitly indicated at the outset of the Motion that they were bringing the Motion because of their duties and obligations under the HRAP as City councillors.  At all times the councillor defendants acted in good faith.

[190]      Similarly, the trustees acted in good faith with respect to the Motion, consistent with their obligation to protect the interests of LGBTQ2S+ students, parents and teachers in the TCDSB schools.

[191]      There is no evidence that either the councillors or the trustees were motivated by malice.

[192]      Councillors and trustees must be able to take positions on issues of importance to their constituents, without facing the risk of a claim for misfeasance in public office when a person disagrees with that position. Such an approach is consistent with the comments of the court in The Catalyst Capital Group, at para. 16, in which the court adopted its earlier comment in Pikangikum First Nation v. Nault, 2012 ONCA 705, 298 O.A.C. 14, at para. 77, leave to appeal refused, [2013] S.C.C.A. No. 10, that:

[193]      For the above reasons, the plaintiffs have failed to establish a real prospect of success against the councillors or the trustees on the misfeasance in public office claim, or the abuse of authority claim if it is considered as an independent tort. There are no grounds to believe that either claim has substantial merit, i.e., that such a finding weighs in favour of the plaintiffs.

[194]      This claim is brought against the defendant councillors and trustees.

[195]      In Drouillard v. Cogeco Cable Inc., 2007 ONCA 322, 86 O.R. (3d) 431, the court set out the required elements to establish the tort of inducing breach of contract, at para. 26:

[196]      The law on this issue is not in dispute on this motion.

[197]      There is no evidence to support a claim for inducing breach of contract against either the councillors or the trustees. None of the requirements of the tort weigh in the plaintiffs’ favour.

[198]      There is no evidence that the plaintiffs had a contract which was suspended as a result of the defendants’ Impugned Statements. Even if there was a “temporary suspension of advertising pending the motion”, as stated by Volpe, there is no evidence that there was an existing contract with the City that was breached.

[199]      Wong-Tam’s evidence is that the City purchased advertisement space in Corriere on a “buy-as-we-need-basis”. The plaintiffs filed no evidence to the contrary. Consequently, there is no evidence of a contract that was breached.

[200]      There is no evidence that the defendants had knowledge of a contract between the City and the plaintiffs, even if it existed (which the plaintiffs have not established).

[201]      Even if there was a contract which the councillors or trustees knew about, the Motion did not require the City to breach such a contract with the plaintiffs and there is no evidence that the City did so. The City was not contractually obligated to purchase advertising in Corriere.

[202]      The City Council Decision did not require the City to cease advertising with Corriere. 

[203]      Finally, the plaintiffs have not provided any evidence of losses that they suffered from the alleged breach of contract.

[204]      Consequently, the plaintiffs have failed to establish that, based on the law and facts before the court, the success of the inducing breach of contract claim weighs in their favour.

[205]      This claim is brought against the defendant councillors and trustees.

[206]      The elements to establish a claim for wrongful interference with economic relations were reviewed in Grand Financial Management Inc. v. Solemio Transportation Inc., 2016 ONCA 175, 395 D.L.R. (4th) 529, at para. 62, leave to appeal refused, [2016] S.C.C.A. No. 183:

[207]      Further, the scope of the tort is “narrow” and is only available where a defendant commits an unlawful act against a third party, and that act intentionally causes harm to the plaintiff: A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12, [2014] 1 S.C.R. 177, at para. 5.

[208]      For the reasons discussed at paras. 185-91 above, there is no evidence that any of the defendant councillors or trustees intended to injure the plaintiffs’ economic interests. On that basis alone, the plaintiffs cannot establish a real prospect of success for this claim.

[209]      The plaintiffs submit that the intent to injure their economic interests and the unlawful means are established because the trustees supported the Motion which sought to “censor” Corriere and infringe their Charter rights. I do not agree.

[210]      The evidence was that the defendant councillors were concerned about the use of public funds for advertisements in a newspaper that they believed espoused homophobic, transphobic, and anti-LGBTQ2S+ views. Wong-Tam and Ainslie sought to ensure that third party media vendors complied with the HRAP and the Declaration. Such evidence does not establish that the councillor defendants intended to injure the plaintiffs’ economic interests.

[211]      Similarly, the trustees acted to protect the interests of their constituents, i.e., students, teachers, and parents. The trustees acted pursuant to their good faith understanding of their obligations under the Education Act, the TCDSB Code of Conduct, and other relevant TCDSB policies.

[212]      Consequently, the plaintiffs’ assertion of an intent to injure or unlawful act, based solely on the trustees’ good faith efforts to protect the safety and inclusion of the LGBTQ2S+ community, is unsupportable on the evidence.

[213]      Finally, there is no “third party” against whom the alleged unlawful act took place. It was not unlawful conduct towards the City to ask it to take steps to ensure that Corriere complied with the HRAP if the City was to use taxpayer funds for advertising. That is a decision which can be made by the City, and it is not unlawful for any individual, let alone a trustee or councillor, to ask the City to take such steps.

[214]      Consequently, the plaintiffs have failed to establish that, based on the law and facts before the court, the success of the wrongful interference with economic relations claim weighs in their favour.

[215]      For the above reasons, I conclude that the defamation claim is the only cause of action upon which the plaintiffs have established a real prospect of success.

[216]      Consistent with the approach in Levant, Bernier, and Mondal, I now address whether the plaintiffs have established a real prospect of success that there are no valid defences to the defamation claim, as the plaintiffs are required to do under s. 137.1(4)(a)(ii).

[217]      The defendants rely upon the following defences to the defamation claim:

[218]      I rely on my analysis of the burden of proof as set out at paras. 141-42 above. In brief, for each of the above defences, the burden is on the plaintiffs to establish, based on the applicable law and the evidence before the court, that there is a “real prospect of success”, i.e., that it “tends to weigh more in favour of the plaintiff” that none of the defences relied upon by the defendants are valid.

[219]      If the plaintiffs fail to meet that burden for any of the defences, then the anti-SLAPP motion shall be granted and the proceeding dismissed.

[220]      For the reasons that follow, I find that the plaintiffs have failed to establish a real prospect of success that any defence is invalid.

[221]      I address each of the defences below.

[222]      In WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 28, the court set out the requirements to establish a defence of fair comment:

[223]      I review the applicable law for each of the five elements. In addition, I address the context of the public debate from which the Impugned Statements arose.

[224]      Similar to the approach of the court under s. 137.1(3), the defendant’s onus of showing that the comment is on a matter of public interest is “relatively easy to discharge”, consistent with the principle that “public interest” is a “broad concept”: WIC Radio, at para. 30.

[225]      The facts on which the comment is based need not be stated exhaustively or in detail. Rather, the impugned expression must “explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made”: WIC Radio, at para. 31.

[226]      This element is also satisfied if the underlying facts are so notorious as to already be understood by the audience: WIC Radio, at para. 34. 

[227]      The essence of the factual basis requirement is that there is a “sufficient launching pad for the defence of fair comment”: WIC Radio, at para. 34. A requirement that the comment be “supported by the facts” is not appropriate, as this could “create the potential for judicial censorship of public opinion”: WIC Radio, at para. 39.

[228]      If the factual foundation is unstated or unknown, or turns out to be false, the fair comment defence is not available: WIC Radio, at para. 31.

[229]      A comment is “generously interpreted”: WIC Radio, at para. 30, and includes a “deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof”: WIC Radio, at para. 26.

[230]      Words “that may appear to be statements of fact may, in pith and substance, be properly construed as comment”: WIC Radio, at paras. 26-27.

[231]      Words that may appear to be statements of fact are recognizable as opinion “particularly so in an editorial context where loose, figurative, or hyperbolic language is used … in the context of political debate, commentary, media campaigns and public discourse”: WIC Radio, at para. 26.

[232]      The plaintiffs submit that a statement that a person is homophobic, transphobic, or anti-LGBTQ2S+ is a statement of fact, not a comment. I do not agree. The case law supports the opposite conclusion.

[233]      In Awan v. Levant, 2016 ONCA 970, 133 O.R. (3d) 401, leave to appeal refused, [2017] S.C.C.A. No. 71, Feldman J.A. reviewed the issue of whether describing a person as an “anti-Semite” was a statement of fact or opinion. Under the heading “Fact versus Comment – Calling the Respondent an Anti-Semite”, Feldman J.A. found that such a statement was a comment, at paras. 80-84:

[234]      Similarly, the Court of Appeal in Levant held that the characterization of the plaintiff as “a neo-Nazi sympathizer” was recognizable as comment: at paras. 64 and 65.

[235]      The court in Bernier adopted a similar approach. The defendant in Bernier described the plaintiff as a “racist”, “anti-Semitic”, and a “bigot”: at para. 25. MacLeod R.S.J. granted the anti-SLAPP motion on the basis that “the plaintiff runs a significant risk that his action will succumb to one of the defences of justification or fair comment”.[10] MacLeod R.S.J. held, at para. 50:

[236]      In Mondal, Morgan J. considered a tweet that “amounts to ‘an allegation of homophobia’”: at para. 15. He held that the tweet was a comment, at para. 34, since:

[237]      The comment must be one that any person – “however opinionated or prejudiced” or “obstinate [in their] views” – could express based on the facts. It is not a high threshold: WIC Radio, at paras. 40, 49-50.

[238]      It is not required for the defendant to show that the facts “warranted” the comment or that the comment was a “reasonable and proportional response to the stated or understood facts”: WIC Radio, at paras. 28, 39.

[239]      The fair comment defence will only be defeated if subjective malice is the defendant’s dominant motive for making the comment: WIC Radio, at para. 53.

[240]      Fair comment must be assessed in the context of public debate, where the plaintiff has entered the fray and should reasonably expect a vigorous response.

[241]      Malice is not established simply because a person uses strong language in a heated public debate over a political issue. It is necessary to establish subjective intent. In Mondal, the court considered the defence of fair comment in a defamation action arising out of the defendants’ tweets that the plaintiff was homophobic and transphobic. The court granted the anti-SLAPP motion and dismissed the action. Morgan J. held, at paras. 40 and 41:

[242]      I now apply the above legal principles to the facts of the present case, under the standard of proof required under Pointes.

[243]      For this defence, I review each of the required elements of fair comment.

[244]      As I discuss at paras. 125-39 above in my analysis of the public interest requirement under s. 137.1(3), the comments in the Impugned Statements were on a matter of public interest.

[245]      The comments by the Yahoo Defendants and in the January 11 Tweets were made in relation to the public debate as to the decision of the TCDSB to remove the link to the LGBT YouthLine website.

[246]      The January 11 Tweets, as well as the January 14 Tweet, the Motion, the Joint Letter, and the Press Conference Statements, were all made on the matter of public interest as to whether (i) the City was failing to comply with the HRAP by spending public funds on advertising in a newspaper that the councillors and trustees believed espoused homophobic, transphobic, and anti-LGBTQ2S+ “ramblings”, and (ii) the protection of the interests of students, teachers, and parents in the TCDSB.

[247]      Consequently, this factor does not weigh in the plaintiffs’ favour.

[248]      The basis for the Impugned Statements was provided by all of the defendants, who referred to the comments by Volpe in the Initial and YouthLine Articles as the source of their comments. Those statements by the defendants “indicate, at least in general terms, what are the facts on which the comment is being made”: WIC Radio, at para. 31.

[249]      The issue before the court on this anti-SLAPP motion is not whether the plaintiffs are homophobic, transphobic, or anti-LGBTQ2S+. The issue under the fair comment defence is whether it weighs more in favour of the plaintiffs that the comments by Volpe could not provide a basis in fact for the Impugned Statements.

[250]      For the reasons that follow, I find that the plaintiffs failed to meet their burden.

[251]      I do not repeat in this section all of the statements made by Volpe in the Initial Articles challenging the decisions of those trustees on issues affecting the LGBTQ2S+ community at TCDSB schools. Nor do I repeat the full detail of Volpe’s comments in the YouthLine Article.

[252]      For ease of reference, I repeat the summary of Volpe’s comments from the Initial Articles, as set out at para. 8 above:

[253]      For ease of reference, I repeat the summary of Volpe’s comments from the YouthLine Article, as set out at para. 10 above:

[254]      All of the above comments support a basis in fact for the comment that the plaintiffs were homophobic, transphobic, and anti-LGBTQ2S+.

[255]      The plaintiffs submit that their comments in the Initial and YouthLine Articles demonstrate no “fear” of the LGBTQ2S+ community, adopting a narrow definition of the terms homophobic and transphobic. However, even on that narrow definition, Volpe’s statements in the articles demonstrate such a fear and “well documented anti-LGBTQ+ views”.

[256]      By labelling the LGBT YouthLine site as a “recruitment site … to attract children”, by describing supporters of the LGBT YouthLine as “urban social terrorists [who] tear apart the Catholic educational system”, and by saying that anyone “trolling” the LGBT YouthLine website “should be considered a pedophile”, those comments demonstrate a factual basis that the plaintiffs feared the LGBTQ2S+ community.

[257]      Similarly, the statements from the articles support a basis in fact that the plaintiffs were homophobic, transphobic, and anti-LGBTQ2S+ if a broader definition is used. Such a broader definition is discussed by Jonathan Cohen, in his article “More Censorship or Less Discrimination? Sexual Orientation Hate Propaganda in Multiple Perspectives” (2000) 46 McGill L.J. 69, at p. 74:

[258]      In addition to the comments summarized at paras. 252 and 253, other comments by Volpe in the Initial Articles and in the YouthLine Article support such a broad definition, including repeated references to the fact that Premier Wynne was “an openly lesbian politician who left her male husband for another woman”, which have no relevance to the issues of Roman Catholic doctrine, but only serve to insinuate perceived sexual deviance.

[259]      The plaintiffs ask the court to find that it “weighs in their favour” that their comments were only related to a public debate in which the plaintiffs challenged policies of the trustees on the basis of a dispute over the extent of Roman Catholic doctrine. However, that factual finding cannot be made based on the Initial Articles and the YouthLine Article.

[260]      While the plaintiffs submit that they only engaged in a policy debate, the words in the Initial and YouthLine Articles speak for themselves. Words matter.

[261]      The plaintiffs did not limit themselves to a debate as to the scope of the Roman Catholic doctrine. Instead, they used derogatory and prejudicial language about the LGBTQ2S+ community and those who support the inclusion of LGBTQ2S+ students at the TCDSB. The articles traffic in homophobic tropes such as predation, pedophilia, and socially destructive behaviour.

[262]      It is not the role of the court on an anti-SLAPP motion to make a finding of fact as to whether a plaintiff is homophobic, transphobic, or anti-LGBTQ2S+. The role of the court is only to determine if the plaintiffs have met their burden to establish that it weighs in their favour that there is no basis in fact for the impugned statements.

[263]      For the reasons I discuss above, the plaintiffs do not meet this burden. There is a “sufficient launching pad” for the Impugned Statements that Volpe and Corriere are homophobic, transphobic, and anti-LGBTQ2S+.

[264]      For the reasons I discuss at paras. 229-36 above, the Impugned Statements that the plaintiffs are homophobic, transphobic, and anti-LGBTQ2S+, or that Volpe has “well documented anti-LGBTQ+ views”, are recognizable as comment on an objective basis. The Impugned Statements are all examples of a deduction, inference, conclusion, remark or observation based on the statements in the Initial and YouthLine Articles.  

[265]      Consequently, this issue does not weigh in the plaintiffs’ favour based on the applicable law and the Impugned Statements.

[266]      The plaintiffs have not satisfied their burden to establish that it weighs in their favour that the comments that the plaintiffs were homophobic, transphobic, and anti-LGBTQ2S+ were not comments that any person could honestly make on the proved facts.

[267]      I rely on my analysis at paras. 251-58 above. A person reading the Volpe comments in the Initial and YouthLine Articles could reach the conclusion that the plaintiffs were homophobic, transphobic, and anti-LGBTQ2S+, or that Volpe held “well documented anti-LGBTQ+ views”.

[268]      Further, the evidence is uncontested that others shared the same views as the defendants, i.e., that the plaintiffs were homophobic, transphobic, and anti-LGBTQ2S+.

[269]      Pizza Nova withdrew its advertisements from Corriere on November 17, 2021, after one of its customers sent a tweet objecting to Pizza Nova advertising in a “homophobic & transphobic publication” which circulated Volpe’s “homophobic & transphobic rants”.

[270]      Pizza Nova agreed with that concern, as shown by its immediate response to the tweet, withdrawal of advertising from Corriere, and its public statement that “the articles to which you refer are not in accordance to our beliefs”, which were based on Pizza Nova being “a very inclusive company”.

[271]      LGBT YouthLine, an organization dedicated to assisting youth in the LGBTQ2S+ community, also reached the same conclusion as demonstrated in the LGBT YouthLine Press Release (see para. 60 above).

[272]      For the above reasons, the plaintiffs have not established that it weighs in their favour that any person could not honestly make the Impugned Statements on the proved facts.     

[273]      Finally, as I discuss at paras. 185-91 above, there is no evidence of subjective malice of the defendants, let alone evidence that any such malice (if it existed) was the dominant intent in making the comments.

[274]      To the contrary, the evidence, as I discuss above, is that all of the defendants were acting in good faith, in support of their statutory and other duties, to best represent the public interest in their roles as councillors or trustees and as a journalist publishing news on a website.

[275]      Consequently, the plaintiffs have not established that it weighs in their favour that a court would find the defendants’ comments were actuated by express malice, or that malice was the dominant intent in making the Impugned Statements.

[276]      As in Mondal, the Impugned Statements in the present case were made in the context of public debate, initiated by the plaintiffs through the Initial and YouthLine Articles. The plaintiffs raised a heated issue as to the conduct of the defendant trustees who supported certain policies affecting the LGBTQ2S+ community at the TCDSB. The plaintiffs acknowledged in their articles that they would likely be criticized as making homophobic comments, which is exactly what happened when their comments raised such concerns.

[277]      For the above reasons, I find that the plaintiffs have failed to satisfy the court that there are grounds to believe that the defence of fair comment is not valid. The weight of such a position is not in favour of the plaintiffs.

[278]      On this basis alone, I would grant the anti-SLAPP motions and dismiss the Action. However, for purposes of completeness, I address the remaining defences raised by the defendants as well as the weighing test under s. 137.1(4)(b).

[279]      This defence is relied upon by the defendant councillors and trustees.

[280]      Qualified privilege applies to defamatory statements where “the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it”: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para. 143.

[281]      Qualified privilege is assessed on an objective basis. It may protect a communication which is not based upon true facts—the defence attaches to the circumstances in which the communication is made, rather than the communication itself: Botiuk v. Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC), [1995] 3 S.C.R. 3, at para. 78.

[282]      Qualified privilege protects (i) statements of public officials on matters of public interest: Lane v. Nanaimo-Ladysmith School District No. 68, 2006 BCSC 129, at para. 87, and (ii) communications between community members and city officials on matters of public interest: Lemire v. Burley, 2021 ONSC 5036, at para. 100.

[283]      Public officials “have a duty to keep each other, the government and the public informed on matters related to the public interest. [They] have an obligation to keep each other informed on matters falling within their competence”: Lane, at para. 87.

[284]      Qualified privilege protects the public statements of school board trustees made in the public interest: Lane, at para. 87.

[285]      The importance of preserving a municipal councillor’s freedom of expression was discussed by the Supreme Court in Prud’homme c. Prud’homme, 2002 SCC 85, [2002] 4 S.C.R. 663, at para. 42:

[286]      A councillor’s freedom of expression is “a crucial instrument for achieving effective participation in and transparent management of municipal affairs”: Prud’homme, at para. 53

[287]      Qualified privilege attaches to statements to the press when an elected representative has the duty to keep constituents informed and the constituents have a reciprocal interest in knowing a position. In Stopforth v. Goyer (1979), 1979 CanLII 1661 (ON CA), 23 O.R. (2d) 696 (C.A.), the court held:

[288]      Similarly, in Parlett v. Robinson, 1986 CanLII 929 (B.C.C.A.), leave to appeal refused, [1986] S.C.C.A. No. 322, the court held that statements by an elected member of Parliament at a news conference and in an interview were protected by qualified privilege. The court held, at para. 31:

[289]      In Parlett, the B.C. Court of Appeal reversed the decision of the trial judge who attempted to distinguish Stopforth on the basis that in that case, the statement repeated to the press had initially been made in Parliament. The court held, at para. 40:

[290]      Communications from constituents to city representatives are protected where the constituent has a “personal, social and civic interest” in providing information to the city, and the city has a corresponding “civil and civic interest” in receiving it: Lemire, at para. 100.

[291]      The communicated information must be “reasonably appropriate to the legitimate purposes of the occasion”: Bent, at paras. 230-31.

[292]      Once qualified privilege is established, a plaintiff can defeat the defence by demonstrating that the defendant exceeded the limits of the privileged occasion: Bent, at para. 121.

[293]      To maintain privilege over protected communications, a defendant “must communicate appropriate information to appropriate people”: RTC Engineering Consultants Ltd. v. Ontario (2002), 2002 CanLII 14179 (ON CA), 58 O.R. (3d) 726 (C.A.), at para. 18. However, a “person speaking on a privileged occasion should not be regarded as a tightrope walker without a safety net, with the judge waiting underneath with bated breath hoping for a tumble”: Bent, at paras. 230-31.

[294]      By way of example, in Parlett, the court held, at para. 41:

[295]      Malice can vitiate the defences of qualified privilege. The onus is on the plaintiff to demonstrate there is a basis in law and fact that malice was the “dominant motive” of the impugned expressions, or that the expressions were made with reckless indifference to their truth: Bent, at paras. 121, 246.

[296]      Proving malice is “not a burden that is easily satisfied”: Bent, at para. 246, and is an inference that courts should be slow to draw: Horrocks v. Lowe, [1975] A.C. 135 (H.L.), at p. 150.

[297]      The mere fact that a defendant dislikes a plaintiff, or “was indignant at what he believed to be the plaintiff's conduct and welcomed the opportunity of exposing it”, does not establish malice: Horrocks, at p. 151. Nor is it sufficient that a defendant knows their defamatory publication will injure the plaintiff; the defendant’s desire to injure the plaintiff must have been the dominant motive for the publication: Horrocks, at p. 149.

[298]      Under the Pointes test, the plaintiffs are required to establish a real prospect of success that the court would find the qualified privilege defence to be invalid, i.e., that a finding of invalidity of the qualified privilege defence weighs in favour of the plaintiffs, based on the applicable law and evidence.

[299]      For the reasons that follow, I find that the plaintiffs have failed to meet that burden.

[300]      I first address the councillors’ defence of qualified privilege and then consider the trustees’.

[301]      The HRAP applies to elected officials and all City contracts.  The HRAP provides:

[302]      The HRAP also mandates that all contracts with third party individuals and organizations delivering services to the City must include a signed copy of the Declaration and are subject to contract provisions regarding consequences for non-compliance. In the present case, the City was using taxpayers’ money to purchase advertisement space in Corriere.

[303]      The defendant councillors, in their capacity as elected City officials, had an interest and/or duty to ensure that the City, through its advertising using public funds, did not tolerate, ignore, or condone what the councillors reasonably viewed as the plaintiffs’ acts of discrimination and harassment against the LGBTQ2S+ community. This duty was reflected at the outset of the Motion in the councillors’ statement that their motivation in bringing it was to act in accordance with their duty under the HRAP. 

[304]      City Council had a corresponding interest and/or duty under the HRAP and the CTA to receive the information contained in the Motion. 

[305]      The evidence is that the impugned statements in the Tweets, Motion, and Press Conference Statements were made pursuant to the councillors’ duty to represent and inform their constituents, with the obligation of the City to address those concerns and the interest of the electorate in learning of such concerns.

[306]      Consequently, the plaintiffs have not established a real prospect of success that the impugned expressions in the Tweets, Motion, and Press Conference Statements were not made on a privileged occasion.

[307]      The evidence supports the defendants’ submission that the councillors’ Impugned Statements were made in a manner consistent with the scope of the occasion. The Motion was directed to the City Council. The Press Conference Statements were made in the context of a local press conference held on YouTube due to the COVID-19 pandemic.

[308]      The evidence supports a finding that the scope of the communication was appropriate. The defendant councillors alerted City councillors about the concerns through the Tweets, Motion and the Press Conference Statements, so that the City could take the necessary steps to address what the councillors viewed as homophobic, transphobic, and anti-LGBTQ2S+ conduct by one of the newspapers in which the City spent public funds for advertising. The defendant councillors raised with the appropriate people (including the media) their concern that advertising in the Corriere conflicted with the HRAP.

[309]      Consequently, the plaintiffs have not established a real prospect of success that the impugned expressions in the Tweets, Motion, and Press Conference Statements exceeded the scope of the qualified privilege.

[310]      The evidence of the councillor defendants is that they made their comments in good faith and did not intend to injure the plaintiffs. They brought attention to the YouthLine Article and the plaintiffs’ publications because they believed it was incumbent on them as City councillors to bring awareness to what they viewed as discrimination and harassment. 

[311]      City councillors are not obligated to remain neutral in light of information that affects their constituents. The fact that they took a strong stance is not evidence of malice.

[312]      Consequently, the plaintiffs have not established a real prospect of success that any qualified privilege in the Tweets, Motion, and Press Conference Statements would be vitiated by proof of malice, let alone that it was the dominant intent in making the statements.

[313]      The issues raised by the defendant trustees in the Joint Letter and Press Conference related to matters of public interest, concerning the public use of taxpayer funds to purchase advertising in a newspaper which the trustees believed was causing harm to LGBTQ2S+ students, families and teachers through views which the trustees, in good faith, believed were discriminatory.

[314]      The Joint Letter and Press Conference Statements fell within the trustees’ competence as elected officials communicating with other elected officials on a matter falling within their shared competencies. Further, the trustees had a duty to their constituents to ensure they knew the trustees’ position and the actions being taken, so that the constituents understood how they were being represented by their officials.

[315]      The public interest also arose under the trustees’ own duties pursuant to the Education Act, the TCDSB Code of Conduct, and other relevant policies, to promote an inclusive school environment, ensure safe schools, and prevent bullying.

[316]      The City councillors had a duty to consider the trustees’ concerns. Further, the electorate had a “real and bona fide” interest in receiving the information.

[317]      All of the trustees had a personal, social and civic interest in providing information to City Council about the plaintiffs’ reporting to “advocate on behalf of the 2SLGBTQ community, our students, our staff, our parents, our families and those residents in the City of Toronto”, as Rizzo stated in her cross-examination. The trustees reasonably and honestly believed that they had information relevant to the motion before City Council, and had a duty to provide it to Council. City Council had a civil and civic interest in receiving information germane to the motion before it.

[318]      Consequently, the plaintiffs have not established a real prospect of success that the impugned expressions in the Joint Letter and Press Conference Statements were not made on a privileged occasion.

[319]      The Joint Letter was addressed to Mayor Tory and City Council and submitted to the City Clerk—the individuals who had an interest in receiving it. The Press Conference Statements were made in the context of a press conference about the Motion. City councillors or interested community members could watch and be informed on the trustees’ experience with Corriere at the TCDSB.

[320]      There is no evidence that the statements did not contain appropriate information or were not provided to appropriate people. The information was relevant to the Motion before City Council. That information was provided to assist City Council in determining the Motion before it and to promote a positive and inclusive environment at the TCDSB.

[321]      The trustees did not exceed the privilege. They did not publish the Joint Letter to a wider audience than was appropriate or necessary.

[322]        Consequently, the plaintiffs have not established a real prospect of success that the impugned expressions in the Joint Letter and the Press Conference Statements exceeded the scope of the qualified privilege.

[323]      There is no evidence that any of the trustees made the Impugned Statements out of malice, let alone a “dominant motive” of malice, or that the statements were made with reckless indifference to their truth.

[324]       The plaintiffs submit that malice can be inferred because the trustees knew that the effect of the Joint Letter and Press Conference Statements would be to “censor” Corriere and “attack” the plaintiffs’ Charter rights. For the reasons I discuss at paras. 138, 185-91 and 209-12 above, I reject that submission.

[325]      Consequently, the plaintiffs have not established a real prospect of success that any qualified privilege in the Joint Letter and Press Conference Statements would be vitiated by proof of malice, let alone that it was the dominant intent in making the statements.

[326]      As I discuss above, it is not the role of the court on an anti-SLAPP motion to decide if a defence will succeed at trial. The only issue is whether the plaintiff has satisfied the court that based on the applicable law and the evidence before the court, it weighs in the plaintiffs’ favour that the defence would be found to be invalid at trial.

[327]      For the above reasons, I find that the plaintiffs have failed to establish that there are grounds to believe that the defence of qualified privilege is not valid. The weight of such a position is not in favour of the plaintiffs.

[328]      The defence of justification applies only if the defamatory statement that the plaintiffs were homophobic, transphobic, and anti-LGBTQ2S+ (or that Volpe had well documented anti-LGBTQ+ views) are found to be statements of fact rather than comment. For the reasons that I review in my analysis of the fair comment defence at paras. 229-36 and 264 above, I do not find that the Impugned Statements are facts.

[329]      However, if the plaintiffs could establish that the Impugned Statements were facts, then the councillor defendants, Li Preti, and the Yahoo Defendants rely on the defence of justification and submit that the plaintiffs have not established a real prospect of success that the justification defence is invalid. Put differently, these defendants submit that the likelihood that a court would reject the justification defence does not weigh more in favour of the plaintiffs.

[330]      Further, I note that if a justification defence were found to be valid (assuming the Impugned Statements were facts), then it would apply to all defendants, not just those that raise it on their anti-SLAPP motions, since the defence arises from the assessment of the plaintiffs’ statements.

[331]      On an anti-SLAPP motion, it is not the role of the court to determine whether a defence of justification would be successful at trial. Consequently, the court does not determine whether the plaintiffs are homophobic, transphobic, or anti-LGBTQ2S+ or whether Volpe held well documented anti-LGBTQ+ views. However, the court must consider the evidence to determine whether the plaintiffs have established that such a finding at trial weighs in their favour. I set out that analysis below.  

[332]      The justification defence is established if the defendant can prove the truth of the “sting”, or main thrust, of the defamatory charge, and the publication is “substantially” true in the natural and ordinary meaning of the words used: Bent, at para. 107. 

[333]      A defendant need not show the literal truth of the precise statement made, and it is immaterial that there are slight inaccuracies in the details of the expression or with respect to items of secondary importance: Raymond E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, loose-leaf, 2nd ed (Toronto: Thomson Reuters, 2016), at 10-1, 10-47 to 10-50, 10-59; DEI Films Ltd. v. Tiwari, 2018 ONSC 4423, at para. 30.

[334]      The justification defence can also consider statements made after the impugned statements: Downard, at paras. 6.35 and 6.36.

[335]      At paras. 252-53 above, I review excerpts of the statements made by Volpe and published in Corriere. It is these same excerpts that would be relevant to a defence of justification.

[336]      Based on those statements, the plaintiffs have not established that it weighs more in their favour that a justification defence would be invalid.

[337]      In brief, the plaintiffs’ statements in the Initial and YouthLine Articles could support a finding at trial of the truth of the defendants’ description of (i) the plaintiffs as homophobic, transphobic, and anti-LGBTQ2S+ and (ii) Volpe having “well documented anti-LGBTQ+ views”.

[338]      Volpe’s comments referring to “the LGBTQ2+” as “advocates of ‘non-religious’ value structure”, who “engage in tactics which are insidious, malicious”, his references to “an openly gay politician who left her male husband for another woman”, and his suggestion that Volpe’s views of “sexual propriety” would “safeguard against predators who would victimize” Volpe’s children, are all comments that a court could rely upon to find that the plaintiffs were homophobic, transphobic, and anti-LGBTQ2S+.

[339]      Similarly, comments describing the LGBT YouthLine as a “recruitment site” “to attract children”, which would only be viewed by a “pedophile”, and “exposes [our children’s] innocence to exploitation by others”, can also be viewed by a court as establishing the truth of the sting.

[340]      For the above reasons, if the Impugned Statements are found to be facts, the plaintiffs have not met their burden under s. 137.1(4)(a)(ii) to establish that there is no real prospect of success for a justification defence.

[341]      This defence is only raised by the councillor defendants.

[342]      Section 391 of the CTA provides that no proceeding for damages or otherwise shall be commenced against a member of City Council for any act done in good faith in the performance or intended performance of a duty.

[343]      In Hotspot Auto Parts v. Thompson (20 January 2022), Toronto, CV-20-646309 (Ont. S.C.), the court held that the plaintiffs failed to establish a real prospect of success that the s. 391 defence to the plaintiff’s defamation claim was invalid. In Hotspot, the defendant councillor successfully brought an anti-SLAPP motion, relying on several defences, including s. 391 of the CTA. The court held, at paras. 49-51:

[344]      In McLaughlin v. Maynard, 2018 ONSC 3605, at paras. 24-26, the court similarly held that a councillor performing his duties in good faith was statutorily protected from a defamation claim.

[345]      The plaintiffs submit that immunity under s. 391 cannot apply since there can be no good faith of councillors who sought to prevent advertising in a newspaper in order to censor the newspaper or infringe the plaintiffs’ Charter freedoms. However, as I discuss at paras. 185-91 above, there is no evidence that the councillors acted in bad faith by raising the issue of spending public taxpayer dollars in a publication which the councillors believed to be inconsistent with the HRAP and the interests of their constituents, including the LGBTQ2S+ community.

[346]      The councillors have the right, and the obligation, to inform their electorate as to issues which can affect the interests of the community. Statements that raise concerns of homophobic attacks in relation to LGBTQ2S+ policy disputes in the TCDSB are matters on which councillors should be expected to speak.

[347]      The councillor defendants’ expressions were made in good faith in the performance of their duties as City councillors, and there is no evidence of malice or bad faith that vitiates the protection of s. 391 of the CTA.

[348]      In any event, no censorship was sought of Corriere. The newspaper was only asked to sign a Declaration and provide an undertaking to comply with the HRAP. Corriere and Volpe were fully entitled to maintain their campaign that Roman Catholic doctrine was contrary to policies supported by the defendant trustees, without using language that raised concerns under the HRAP, which provides that the City “will not tolerate, ignore, or condone discrimination or harassment and is committed to promoting respectful conduct, tolerance and inclusion”.

[349]      Consequently, the plaintiffs have not established that there is a real prospect of success that the defence of statutory immunity would not be valid.  

[350]      This defence is only relied upon by the Yahoo Defendants.

[351]      In Grant v. Torstar, 2009 SCC 61, [2009] 3 S.C.R. 640, the court set out the elements of the defence of responsible communication, at para. 126:

[352]      The plaintiffs’ claim is based on the statement in the Yahoo Article that Volpe has “well documented anti-LGBTQ+ views”. On the evidence, it does not weigh in the plaintiffs’ favour that a court would find the responsible communication defence invalid. To the contrary, the evidence supports the validity of such a defence.

[353]      I summarize the relevant evidence on this issue as follows:

[354]      Based on the above evidence and the applicable law, the plaintiffs have not established that there is a real prospect of success that the defence of responsible communication would not be valid.

[355]      For the above reasons, I find that the plaintiffs have failed to meet their burden under s. 137.1(4)(a)(ii) for any of the defences relied upon by the defendants. On the basis of the law and the evidence before the court on the anti-SLAPP motions, the plaintiffs have not established that a finding that the invalidity of any of the defences (let alone all of the defences as the plaintiffs are required to establish) “tends to weigh more in favour of the plaintiff”.

[356]      Given my findings that the plaintiffs have failed to meet their burden under s. 137.1(4)(a)(ii) to establish a real prospect of success that there are no valid defences, it is not necessary to consider the weighing test.

[357]      Nevertheless, I address the issue below in the event the plaintiffs are found to have met their burden under s. 137.1(4)(a)(ii).

[358]      Under s. 137.1(4)(b), the plaintiff must satisfy the court that the harm to be or have been suffered by the plaintiff as a result of the defendant’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

[359]      The court in Pointes held that “the final weighing exercise under s. 137.1(4)(b) is the fundamental crux of the analysis: as noted repeatedly above, the APR and the legislative debates emphasized balancing and proportionality between the public interest in allowing meritorious lawsuits to proceed and the public interest in protecting expression on matters of public interest”: at para. 18 (see also paras. 30, 48, and 61). Côté J. added, at para. 82:

[360]      The weighing exercise “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”: at para. 62. Côté J. added, at para. 81:

[361]      The court is not engaging in a “balancing” exercise. Rather, s. 137.1(4)(b) sets out a “weighing” test to determine whether the plaintiff’s harm is sufficiently serious that the public interest in permitting the proceeding to continue “outweighs” the public interest in protecting that expression. In Pointes, the court held, at para. 66:

[362]      Because s. 137.1(4)(b) requires that the plaintiff “satisfies” the court on the weighing test, the burden must be met on a balance of probabilities: Pointes, at para. 82:

[363]      The plaintiff must “show the motion judge a causal connection between the defamation and actual harm that is disproportionate to the harm the statutory provision is intended to protect against”: Bernier, at para. 70. Consequently, the plaintiff must be able to demonstrate both (i) the existence of harm and (ii) causation: Pointes, at para. 68.

[364]      While a “fully developed damages brief” is not required under s. 137.1(4)(b), “[t]his does not mean that the harm pleaded by the plaintiff should be taken at face value or that bald assertions are sufficient”. The plaintiff must provide evidence for the court to draw an “inference of likelihood in respect of the existence of the harm and the relevant causal link”: Pointes, at para. 71.

[365]      Harm to the plaintiff can refer to non-monetary harm related to the preservation of one’s good reputation or one’s personal privacy, which has inherent value beyond the monetary value of a claim and can, in the appropriate circumstances, be considered in assessing the harm caused to the plaintiff by the defendant’s expression: Pointes, at para. 69.

[366]      However, a bald assertion that a plaintiff’s reputation has been damaged does not satisfy the court as to the level of such damage. In Levant, the plaintiff asserted damage to his reputation. The court held, at paras. 67-68:

[367]      The court in Levant held that the weighing test must also take into account whether the plaintiff “injects themselves into public debate over a contentious topic” in which case “they must expect that they are going to be met with some measure of rebuttal, perhaps forceful rebuttal, by those who take an opposite view”. The court held, at paras. 70 and 71:

[368]      In weighing the harm under s. 137.1(4)(b), the courts should consider the nature of the defendants’ public expression which is impugned in the defamation claim. In Pointes, the court held, at para. 77:

[369]      Similarly, the Court of Appeal held in Armstrong v. Corus Entertainment Inc., 2018 ONCA 689, 143 O.R. (3d) 54, at para. 90:

[370]      The plaintiffs rely on the decision of the B.C. Court of Appeal in Neufeld v. Hansman, 2021 BCCA 222, 50 B.C.L.R. (6th) 217, leave to appeal granted, 2022 CanLII 693 (S.C.C.).

[371]      In Neufeld, the court held that the weighing under s. 137.1(4)(b) should not only consider the evidence of harm suffered by the plaintiff (as set out in s. 137.1(4)(b)), but should also consider the “potential chilling effect” that dismissing the defamation action would have on the “future expression by others who might wish to engage in debates on this or other highly charged matters of public interest”. The court reversed the trial judge, concluding, at paras. 65 and 68:

[372]      The defendants submit that the weighing approach adopted in Neufeld is inconsistent with the approach set out in Pointes, which requires a weighing of the harm caused to the plaintiff, against the countervailing factor in protecting the defendant’s expression. The defendants submit that there is no basis in Pointes for the court to consider the effect on the expression of others if the plaintiff is not permitted to bring the defamation suit.

[373]      The defendants rely on the decision in Levant. The defendants submit that when considering the Pointes test with a media organization plaintiff and a personal plaintiff, the court in Levant did not weigh any purported chilling effect on future expression by other people if the action was dismissed, but instead weighed the evidence of harm to the plaintiffs against the “public interest in protecting [the defendants’] freedom of expression and in having robust debates on matters of public importance”: at para. 71.

[374]      The defendants submit that the approach in Levant is consistent with the purpose of the anti-SLAPP legislation to serve as a defence to a defamation claim.

[375]      For the purposes of these reasons, it is not necessary to decide whether the approach in Neufeld is consistent with the principles in Pointes or the application of the weighing test under s. 137.1(4)(b) in Levant. Even if the court accepted the plaintiffs’ submission in the present case and followed the approach in Neufeld, there is no evidence that the freedom of expression of “others” is at any risk.

[376]      To the contrary, as in Levant, the plaintiffs and others are free to (and the plaintiffs have continued to) raise concerns about policies concerning issues affecting the LGBTQ2S+ community in the TCDSB. The plaintiffs and others can criticize the conduct of the trustees (and councillors) who support such policies. None of the defendants have taken any steps to prevent the plaintiffs or others from entering into the debate.

[377]      I consider the weighing test under s. 137.1(4)(b) on the basis of the applicable legal factors I discuss above: (i) the evidence of damages (including the requirement to establish a causal connection between the defamation and actual harm) against (ii) the weight to be attached to the defendants’ expression, taking into account that the Impugned Statements arose in the context of public debate.

[378]      There is no evidence of any advertising contracts that were cancelled or breached because of the Impugned Statements. At paras. 97-98 above, I set out the assertions by Volpe as to damages. However, those assertions are not supported by the evidence. In particular:

[379]      Volpe makes the bald assertion that his reputation as a journalist has been damaged because he will no longer be viewed as independent and impartial if the Impugned Statements are believed. However, the plaintiffs have not produced any business or financial record to establish any downturn in business arising from their loss of reputation. 

[380]      Consequently, the present case can be contrasted to the decision in Bent, relied upon by the plaintiffs. In Bent, the plaintiff doctor produced an accountant’s report estimating a direct financial impact of $578,949, in addition to evidence of a sharp decline in bookings and unprecedented mass cancellations after the defamatory email had been sent. The plaintiff doctor in Bent had also been informed by vendors that he had been placed on a “blacklist” by insurance companies: at para. 145.

[381]      In the present case, there is no evidence that the Corriere advertising revenue decreased. While a damages brief is not required, there is no evidence before the court of monetary damages, unlike the case in Bent.

[382]      The plaintiffs in the present case are akin to the plaintiffs in Levant, where those plaintiffs “led no evidence of any particular or specific economic harm or damage to their reputation as a result of the article”: Levant v. Demelle, 2021 ONSC 1074, at para. 70, affirmed in Levant, at para. 66.

[383]       Like the plaintiffs in Levant, the only evidence put forward by the plaintiffs is a “self-serving statement” which is “completely devoid of any foundation for the belief” that Volpe has a “reputation as a person held in high regard”: Levant, at para. 69.

[384]      Further, the plaintiffs led no evidence that could establish a causal link between the Impugned Statements and any loss (even if there had been evidence that advertising contracts existed and were lost). To the contrary, there is no basis for the court to find such a causal connection.

[385]      The uncontested evidence is that Pizza Nova withdrew its advertising from Corriere on November 17, 2020, well before any of the Impugned Statements. Pizza Nova based its decision on its independent view that the comments expressed in Corriere were “not in accordance to our beliefs” since Pizza Nova “is a very inclusive company”.

[386]      Consequently, the decision by Pizza Nova could not have been related to the Impugned Statements. Instead, the Pizza Nova decision appears related to the tweet that same day in which the author (Kyle) notified Pizza Nova that Kyle was (i) “[s]ad to hear @PizzaNova is supporting Corriere Canadese’s homophobic & transphobic publication” and (ii) “not sure [Pizza Nova] want[s] to be associated with Volpe’s homophobic & transphobic rants”. Kyle expressly invited Pizza Nova to “hit me up for details”.

[387]      In Pointes, Côté J. commented that “evidence of a causal link between the expression and the harm will be especially important where there may be sources other than the defendant’s expression that may have caused the plaintiff harm”: at para. 72. The plaintiffs in the present case led no evidence to address this concern as to the causal link, which is critical given that it was the plaintiffs’ comments in the Initial Articles up to November 17, 2020 that caused Pizza Nova to withdraw its advertising in Corriere. Pizza Nova’s view may well have been shared by other advertising clients with no knowledge of any of the Impugned Statements.

[388]      In Gill v. MacIver, 2022 ONSC 1279, Justice Stewart emphasized the importance of establishing a causal link. The decision involved multiple s. 137.1 motions relating to claims brought against more than 20 physician and journalist defendants who criticized the plaintiff’s controversial views about COVID-19. Stewart J. held, at para. 174:

[389]      In Levant, the court found that the plaintiffs had “not cleared the threshold of showing harm and causation”: at para. 71. There is no basis for the court to make a different finding in this case.

[390]      Given the plaintiffs’ failure to provide any evidence establishing harm, the public interest in permitting this action to continue is very low.

[391]      I first consider the weight to be attached to the expression of the councillors and trustees, and then consider the weight to be attached to the expression of the Yahoo Defendants.

[392]      In the present case, the trustees and councillors have a history of activism in the public interest, and in particular in support of LGBTQ2S+ rights.

[393]      The councillors sought to promote diversity in forms of self-fulfillment (i.e., to promote the ability of LGBTQ2S+ youth to flourish in their identity) and tolerance in accordance with the HRAP.

[394]      The trustees sought to ensure that an inclusive environment for LGBTQ2S+ students, parents, and teachers would not be endangered by comments which the trustees believed espoused homophobic, transphobic, and anti-LGBTQ2S+ views. This was of critical importance to the electorate they represent. The spending of public taxpayer dollars in a newspaper which councillors (and citizens) believed espoused homophobic, transphobic, and anti-LGBTQ2S+ views, was a matter of importance to the electorate.

[395]      The political speech at issue in this case lies at the core of s. 2(b) protection: Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, at para. 115. The constitutional right to freedom of expression includes the “public … interest in being informed about matters of importance”: R v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477, at para. 28.

[396]      It is the role of a municipal councillor to take public positions – even those that may be unpopular or ill-received – on issues that affect their constituents. They must be afforded the freedom of speech necessary to properly state, persuade, explain, and justify their positions to the public: Prud’homme, at para 53.

[397]       The Impugned Statements by the councillors and trustees constitute political speech in pursuit of the public interest by ensuring that City councillors had information relevant to the decision on the Motion before them. Communication between elected officials on matters of public interest requires protection. That communication ensures that officials can respond in a coordinated manner in service of constituents.

[398]      The Supreme Court has affirmed the strong public interest in protecting the LGBTQ2S+ community from discrimination: Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293, at paras. 96 and 98.

[399]      Further, the Education Act promotes inclusion of LGBTQ2S+ students under ss. 169.1(1)(a.1) and (a.2), which require trustees to conduct themselves in a manner to “promote a positive school climate that is inclusive and accepting of all pupils, including pupils of any … sexual orientation, gender identity, gender expression” and “promote the prevention of bullying.”

[400]      Finally, the comments of the trustees and councillors were all in response to the plaintiffs “inject[ing] themselves into public debate over a contentious topic”: Levant, at para. 70. As in Levant, the plaintiffs “expect[ed] that they are going to be met with some measure of rebuttal, perhaps forceful rebuttal” (Levant, at para. 70), and that is what happened. As in Levant, the context of the impugned expressions is “a factor to consider in assessing the level of damages that the defamatory aspect of the response may create”: at para. 70.

[401]      It is in light of all of the above evidence that I find that the plaintiffs have not met their burden under s. 137.1(4)(b) to establish that the harm they suffered from the Impugned Statements by the trustees and councillors outweighs the public interest in protecting that expression.

[402]      “What is really going on” in the present case is an attempt by the plaintiffs to chill speech of elected officials who choose to speak up, in the interests of their constituents, against what they believe are homophobic, transphobic, and anti-LGBTQ2S+ comments which raise issues of the spending of public money and the protection of the LGBTQ2S+ community. The plaintiffs chose to enter the public debate on LGBTQ2S+ issues, used language which they knew would attract criticism of them as homophobic, transphobic, and anti-LGBTQ2S+, and now ask the court to permit them to seek more than $30 million in damages from the defendants.

[403]      To permit such a claim to proceed would have a chilling effect on public debate, allowing councillors and trustees to be sued for expressions, even if defamatory, which cause limited or no damage in the face of overwhelming public interest. The anti-SLAPP legislation was created to prevent that result.

[404]      For those reasons, I find that the plaintiffs have failed to meet their burden against the trustees and councillors under s. 137.1(4)(b).

[405]      There is a strong public interest in ensuring that the Yahoo Defendants are free to report on an ongoing public debate over the resources that are made available to LGBTQ2S+ students through the TCDSB.

[406]      It is critical for media outlets to be able to provide the views of all parties involved in debates on matters of public interest. In this case, the Yahoo Article included both the statements of Volpe and others critical of the inclusion of the LGBT YouthLine link on the TCDSB’s website and those of LGBT YouthLine reacting to the YouthLine Article.

[407]      It was important in the present case to allow readers to understand the debate. Criticism is a natural and vital part of public interest debates which s. 137.1 seeks to promote by discouraging SLAPP litigation.

[408]       The present case raises the core values of a free press with Charter protected expression rights. The Yahoo Defendants reported on an issue of public interest, as conceded by the plaintiffs.

[409]      Further, as with the impugned expression of the trustees and councillors, the plaintiffs injected themselves into a public debate over matters of public interest, and expected that their comments would attract a strong response. Press coverage of such an issue would have been anticipated by the plaintiffs, which is what occurred.

[410]      Adopting the approach in Armstrong, even if the Yahoo Defendants stepped over the “defamatory foul line” (not even taking into account the defences discussed above), the vast discrepancy between the lack of evidence of harm and the high public interest makes this case one where the weighing under s. 137.1(4)(b) strongly favours the Yahoo Defendants. As the court held in Armstrong, “[b]y enacting s. 137.1, the legislature acknowledged that, in some circumstances, permitting the wronged party to seek vindication through litigation comes at too high a cost to freedom of expression”: at para. 90.

[411]      For the above reasons, I find that the plaintiffs have failed to meet their burden under s. 137.1(4)(b) with respect to the claim against the Yahoo Defendants.

[412]      For the above reasons, I grant the anti-SLAPP motions brought by the moving party defendants and dismiss the Action against them.

[413]      If the parties cannot agree on costs, I will accept brief written submissions. The defendants who are required to have costs determined by the court shall deliver written costs submissions of no more than four pages (not including a costs outline) by June 9, 2022. The plaintiffs shall file responding written costs submissions of no more than four pages (not including a costs outline) to each of the costs submissions received from the defendants, by June 23, 2022. The defendants who delivered costs submissions may file reply costs submissions of no more than two pages by June 30, 2022.

[414]      At the hearing, plaintiffs’ counsel advised the court of his clients’ intention to challenge the constitutionality of ss. 137.1(7) and (8), the costs provisions governing anti-SLAPP motions.

[415]      The plaintiffs advised the court that they raised their intention to bring such a constitutional application in an earlier scheduling attendance before another judge on this matter. However, the court was advised at the present hearing that no steps have been taken to pursue the constitutional challenge other than serving a notice of constitutional question to which there has been no response.

[416]      I am not seized of any constitutional application. It must be scheduled through the civil motions office, most likely through a scheduling case conference.

[417]      Plaintiffs’ counsel at the hearing requested an order that no costs be payable until the constitutional issue has been resolved. Plaintiffs’ counsel submits that requiring payment of costs on a final judgment while a constitutional challenge is pending would not be appropriate.

[418]      Defendants’ counsel submits that a dormant or contemplated constitutional challenge cannot be used as a method to avoid payment of costs.

[419]      I will render my costs reasons after receipt of the written costs submissions. My costs order will be without prejudice to any position that the parties may take on the payment of costs if a constitutional challenge is brought, which can be addressed by the court if the issue arises. I am not seized of any such costs issue.