In United Soils Management Inc. v. Mohammed, 2017 ONSC 4450, the Plaintiff operated a gravel pit in the municipality of Whitchurch-Stouffville. The municipal council voted to allow the Plaintiff to deposit fill onto certain sites. The Defendant was a member of the community, who was concerned about contamination from the deposits. The Defendant posted on the internet regarding her concerns.
The Plaintiff demanded that the Defendant cease posting and apologize. In response, the Defendant posted a retraction and apology. Nevertheless, the Plaintiff commenced a claim against the Defendant claiming damages for defamation.
The Defendant brought a motion to dismiss the action under section 137.1(3) of the Courts of Justice Act, a provision resulting from the Anti-SLAPP (Strategic lawsuit against public participation) legislation. Section 137.1(3) requires the Court to dismiss claims where the Defendant proves that the proceeding arises from “expression” related to “a matter of public interest”, subject to certain exceptions. The Plaintiff conceded that the posts were “expression” related to “a matter of public interest”. The onus then shifted to the Plaintiff to prove that 1) the action had substantial merit, 2) the Defendant had no valid defence, and 3) the harm suffered by the Plaintiff outweighed the public interest in protecting the expression.
The Judge found that 1) the action did not have “substantial merit”, including because there was nothing to be gained by proceeding after the Defendant had apologized; 2) the Defendant had valid defences. The Judge found, among other things, that the defence of justification could still apply, despite the fact that the Defendant posted a retraction and apology. Further, the Judge declined to find that the postings were “malicious”. (A finding of malice prevents reliance on the defences of “fair comment”, “qualified privilege” and “responsible communication’). In declining to find malice, the Judge stressed the importance of reading the posts in context; and 3) the Judge found that there was no evidence of harm suffered by the Plaintiff. The Judge dismissed the Plaintiff’s claim.
In addition, the Judge awarded damages to the Defendant under s. 137.1(9) Courts of Justice Act. S. 137.1(9) permits the Court to award damages to the Defendant if the proceeding was brought in bad faith or for an improper purpose. The Judge considered that the Plaintiff had brought three motions prior to the hearing of the Defendant’s motion to strike. The Judge found that the motions demonstrated an “improper purpose” and were contrary to the intention of the Anti-SLAPP provisions that motions to dismiss be summary in nature. Further, the Judge reiterated that there was no purpose of the Plaintiff proceeding after receiving an apology from the Defendant. The Judge awarded damages to the Defendant of $7,500 on the basis that it unnecessarily caused her stress that affected her day to day life.