



COURT OF APPEAL FOR ONTARIO

CITATION: Labourers International Union of North America,
    Local 183 v. Castellano, 2020 ONCA 71

DATE: 20200203

DOCKET: C66642

Rouleau, Roberts and Harvison Young JJ.A.

BETWEEN

Labourers International Union of North America,
    Local 183,
Nelson Melo, John Evans, Patrick Sheridan, Paul Giovinazzo, Carlee Horner and Ricardo
    Teixeira

Plaintiffs (Respondents)

and

Daniel Joseph Castellano

Defendant (App
ella
nt)

Andrew Ostrom, for the appellant

Andrew Faith and Brookelyn Kirkham, for the respondents

Heard: November 14, 2019

On appeal from the judgment of Justice Bernadette Dietrich
    of the Superior Court of Justice, dated January 30, 2019, with reasons reported
    at 2019 ONSC 506.

By the Court:

A.

OVERVIEW

[1]

The appellant appeals from the motion judges dismissal of his motion
    under s. 137.1 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43 (commonly
    referred to as the anti-SLAPP provision), as well as the judgment allowing
    the respondents action for defamation on a motion for summary judgment and granting
    injunctive relief.

[2]

The respondents brought a defamation action against the appellant, a former
    member of the respondent union, Local 183, based on Internet posts that the
    appellant had made. They brought a motion for summary judgment and the
    appellant, by cross-motion, brought a s. 137.1 motion seeking the dismissal of
    the respondents action. The motion judge dismissed the appellants s. 137.1
    motion, granted the respondents motion for summary judgment on their
    defamation claim against the appellant, and granted broad injunctive relief.

[3]

The appellant concedes that the impugned posts were defamatory and does
    not appeal from the motion judges findings of defamation on the summary
    judgment motion. However, he submits that the motion judge erred in her application
    of the weighing test to be carried out on the s. 137.1 motion in that: first, any
    evidence of harm to the respondents was insufficient to outweigh the public
    interest in the appellants free expression; second, she understated the public
    interest value of the expressive content of the appellants posts.

[4]

The appellant also argues that, in any event, the injunctive relief prohibiting
    him from making any statements about the respondents was overly broad and that there
    was no finding of wrongdoing or evidentiary basis to justify restraining his movements
    in relation to the respondents.

[5]

The respondents maintain the position that the appellant should not have
    been permitted to bring the s. 137.1 motion after the summary judgment motion
    was ready to be heard, because a s. 137.1 motion is intended to serve as a screening
    procedure at the early stages of the litigation. They further submit that, in
    any case, there is no utility in appealing the motion judges findings on the s. 137.1
    motion, as she found that the full record substantiated the appellants liability
    in defamation. The respondents submit that there was no error in the injunctive
    relief ordered by the motion judge; it was amply supported by the evidence and
    is entitled to deference by this court.

[6]

For the reasons that follow, we dismiss the appeal in relation to the s. 137.1
    motion but allow the appeal in part with respect to the injunctive relief
    ordered by the motion judge.

B.

ANALYSIS

(1)

Section 137.1 motion

[7]

Starting with the appellants s. 137.1 motion, we agree with the appellants
    position that the motion judge made no error in hearing the s. 137.1 motion at
    the same time as the summary judgment motion. There is no statutory or other
    prohibition against proceeding in this manner and it was within the discretion
    of the motion judge to determine the order in which the motions would be
    addressed.

[8]

Moreover, the purpose of s. 137.1 could be undercut if the bringing of a
    summary judgment motion precluded a defendant from bringing a s. 137.1 motion. While
    mindful that the efficacy of s. 137.1 could be undermined if the motion is not
    brought on a timely basis, there is no statutory timeline for its hearing.

[9]

There should be no hard and fast rule dictating when such a motion should
    be brought; otherwise, the inherent discretion of a motion judge to manage the
    proceedings before him or her would be fettered. We do not read para. 50 of
Zoutman v. Graham
, 2019 ONSC 2834, appeal as of
    right to the Court of Appeal filed,
as purporting to set down as general
    principle anything to the contrary.

[10]

We do not, however, see any error in the motion judges dismissal of the
    appellants s. 137.1 motion. She correctly articulated and applied the appropriate
    test, as set out in para. 7 of this courts decision in
1704604 Ontario
    Ltd. v. Pointes Protection Association,
2018 ONCA 685, 142 O.R. (3d) 161,
    leave to appeal granted and appeal heard and reserved November 12, 2019, [2018]
    S.C.C.A. No. 467:

Stripped to its essentials, s. 137.1 allows a defendant to move
    any time after a claim is commenced for an order dismissing that claim. The
    defendant must demonstrate that the litigation arises out of the defendants
    expression on a matter relating to the public interest. If the defendant meets
    that onus, the onus shifts to the plaintiff to demonstrate that its lawsuit
    clears the merits-based hurdle in s. 137.1(4)(a) and the public interest hurdle
    in s. 137.1(4)(b).

[11]

The motion judges weighing of the competing interests under s. 137.1 is
    entitled to deference on appeal, absent an identifiable legal error, or a palpable
    and overriding factual error:
1704604 Ontario Ltd.
, at para. 97.

As
    this court noted in
1704604 Ontario Ltd.
, at para. 97, [d]eference is
    important, as there is no reason to think that a simple recalibration of the competing
    interests by an appeal court will provide a more accurate assessment.

[12]

In this case, we see no error in the motion judges balancing of the
    competing interests that would permit appellate intervention.

[13]

The motion judge properly considered the issue of the reputational
    damage to the respondents. In particular, she found that the appellants
    expression had cast serious aspersions upon their individual characters. The
    motion judge found the respondents general damages, as exacerbated by the appellants
    malice, to have been more than nominal, partly in the light of the positions
    held by the individual plaintiffs. It was not necessary for her to find
    monetary damages because a serious libel does not always manifest itself in
    financial losses:
Montour

v. Beacon Publishing Inc.
, 2019
    ONCA 246, at para. 31, leave to appeal refused, [2019] S.C.C.A. No. 154.

[14]

Similarly, the motion judge carefully considered the public interest in
    the expressive content of the appellants posts, including the videos. She did
    not, as the appellant submits, limit her analysis to the added commentary to
    the videos. She found that the posts involved gratuitous personal attacks, as well
    as vulgar and offensive language, and did not address any governance or
    leadership issues in any constructive or cogent way. She therefore found that the
    public interest in the appellants expression was low. Her conclusion that the
    harm suffered by the respondents outweighed the public interest in protecting
    the appellants expression was well-grounded in the evidence and free from
    error.

(2)

Scope of injunctive relief

[15]

With respect to the injunctive relief granted, the appellant submits that
    the injunction prohibiting any statements or posts about any of the respondents
    and restricting his attendance was overly broad and that the motion judge erred
    in failing to consider whether a more restricted injunction would have
    sufficed. Given the motion judges determination of the summary judgment motion,
    the appellant concedes that an injunction prohibiting defamatory posts was appropriate.

[16]

The motion judge ordered the following injunctive relief in subparas. 2
    to 8 of her judgment:

2.  THIS COURT ORDERS that the Defendant shall take all necessary
    steps to remove all audio and video recordings, and written statements, of or
    about any and all of the Plaintiffs, from the internet or any other location in
    which they are accessible to the public and to destroy all such audio and video
    recordings and written statements within seven days of the release of these reasons.

3.  THIS COURT ORDERS that immediately following those seven
    days, the Defendant shall provide, in writing, to counsel for the plaintiffs,
    proof of all steps taken to remove and destroy all such material, and shall
    confirm, in writing, that no such material remains publicly accessible or
    within his possession or control, or, to the best of his knowledge, remains in
    the possession or control of a third party.

4. THIS COURT ORDERS that the defendant shall not make or
    publish, or cause any other person to make or publish any video or audio
    recording, or written statement, of or about any of the Plaintiffs.

5.  THIS COURT ORDERS that the Defendant shall not make,
    ratify, endorse, publish or re-publish, post or re-post, or cause anyone else
    to do so, on the internet or elsewhere, any statement about any of the Plaintiffs.

6.  THIS COURT ORDERS that the Defendant shall have no further
    contact with any of the Plaintiffs, either directly or indirectly, but shall
    deal directly with the Plaintiffs counsel.

7.  THIS COURT ORDERS that the Defendant shall not knowingly attend
    or be present within 500 meters of the individual Plaintiffs or their families,
    their personal residences, their places of employment, or any other location where
    he knows them to be present, unless such conduct occurs as a consequence of the
    defendant encountering any of the Plaintiffs on a jobsite where the Defendant
    is, at that time, employed to work.

8.  THIS COURT ORDERS that the Defendant shall not, without the
    written consent of the president of Labourers International Union of North America,
    Local 183, attend within 500 meters of any office, property or training centre
    of Local 183 including the Local 183 offices located at 1263 Wilson Avenue
    #200, North York, Ontario M3M 3G3, and 560 Dodge St., P.O. Box 156, Cobourg,
    Ontario K9A 4K5. The defendant shall not attend at any jobsite where Local 183
    holds bargaining rights unless the Defendant is employed to work at such
    jobsite and his attendance there is directly related to such employment.

[17]

In support of the motion judges conclusions and order, the respondents seek
    to introduce fresh evidence consisting of the reasons of the trial judge in relation
    to the appellants criminal trial on unrelated charges to demonstrate the
    appellants continuing animus against the respondents. The appellant takes no position
    respecting the respondents fresh evidence motion. Since the proposed fresh
    evidence could not have been obtained with diligence before the hearing of the motions,
    is credible and potentially relevant to the scope of the injunctive relief
    ordered and could therefore affect the outcome of an issue on appeal, we admit
    it:
Sengmueller v. Sengmueller
(1994), 17 O.R. (3d) 208 (C.A.). However,
    as the evidence concerning ongoing animus is dated, we give it little weight.

(a)

Publication injunction

[18]

In considering whether the injunction against the publication of any
    commentary concerning the respondents was overly broad, we start with some well-established
    general principles. As this court stated in
St. Lewis v. Rancourt
, 2015
    ONCA 513, 337 O.A.C. 15, at para. 16, leave to appeal refused, [2015] S.C.C.A.
    No. 407: A broad ongoing injunction is an extraordinary remedy which should be
    used sparingly. However, where there has been a campaign of defamation and a
    likelihood that it will continue, there is authority for such an order. The injunctive
    relief must be broad enough to be effective but no broader than reasonably
    necessary to effect compliance:
Cambie Surgeries
    Corp. v. British Columbia (Medical Services Commission)
, 2010 BCCA 396, 9
    B.C.L.R. (5th) 299
, at para. 39.

[19]

While the evidentiary record supports a permanent injunction prohibiting
    the appellant from posting defamatory comments about the respondents, it does
    not justify a permanent blanket injunction enjoining him from making or publishing
    any comments about the respondents.

[20]

The motion judge concluded that the appellant would likely continue to
    post defamatory comments about the respondents if not enjoined from doing so. Her
    finding is grounded in the evidence and entitled to deference on appeal. However,
    she made no finding that the appellant was incapable of discerning between defamatory
    comments and legitimate criticism, such that a blanket injunction was required.
    Nor is there any evidence from which such a conclusion could be inferred. Absent
    evidence that prohibiting the appellant from making non-defamatory statements
    is reasonably necessary to address the identified likelihood of future
    defamation, the injunction should not have been cast so broadly that it captured
    non-defamatory statements.

[21]

Accordingly, we amend subparas. 4 and 5 of the judgment to specify that
    the appellant is enjoined from making or publishing any defamatory communications,
    including video or audio recordings, about the respondents, as follows:

4.  THIS COURT ORDERS that the Defendant shall not make or publish,
    or cause any other person to make or publish, any defamatory video or audio
    recording, or defamatory written statement, of or about any of the Plaintiffs.

5.  THIS COURT ORDERS that the Defendant shall not make,
    ratify, endorse, publish or re-publish, post or re-post, or cause anyone else
    to do so, on the Internet or elsewhere, any defamatory statement about any of
    the Plaintiffs.

[22]

With respect to subparas. 2 and 3 of the judgment, the appellant has
    complied with them. However, he may need the remaining copy of the videos filed
    with this court for the purposes of his ongoing human rights complaint. We therefore
    amend those subparagraphs to permit the use of those materials in any court or administrative
    proceeding, as follows:

2. THIS COURT ORDERS that the Defendant shall take all
    necessary steps to remove all audio and video recordings, and written
    statements, of or about any and all of the Plaintiffs, from the Internet or any
    other location in which they are accessible to the public and to destroy all
    such audio and video recordings and written statements within seven days of the
    release of these reasons. The Defendant is permitted to keep and use a copy of
    these recordings or statements for the sole purpose of using or producing them as
    required in a court or administrative proceeding related to his ongoing human
    rights complaint, following which they are to be destroyed.

3. THIS COURT ORDERS that immediately following those seven
    days, the Defendant shall provide, in writing, to counsel for the Plaintiffs,
    proof of all steps taken to remove and destroy all such material, and shall
    confirm, in writing, that no such material remains publicly accessible or
    within his possession or control, or, to the best of his knowledge, remains in
    the possession or control of a third party. The Defendant is permitted to keep
    and use a copy of this material for the sole purpose of using or producing it as
    required in a court or administrative proceeding related to his ongoing human
    rights complaint, following which they are to be destroyed.

(b)

Injunction restraining the appellants attendance and communications

[23]

Finally, we consider the provisions of the judgment that permanently restrict
    the appellants attendance near the respondents and their families and prohibit
    any communications directly with the respondents.

[24]

We reiterate that permanent injunctions constitute extraordinary relief that
    must be granted sparingly. A different test applies for a permanent injunction
    than for an interlocutory injunction. A different test is required because, in considering
    an application for a permanent injunction, the court has the ability to finally
    determine the merits of the case and fully evaluate the legal rights of the
    parties. See
1711811 Ontario Ltd. (AdLine) v. Buckley Insurance Brokers
    Ltd.
, 2014 ONCA 125, 371 D.L.R. (4th) 643, at paras. 76-80;
Cambie Surgeries
    Corp.
, at paras. 27-28.

[25]

As referenced in Robert J. Sharpe,
Injunctions and Specific Performance
,
    loose-leaf, (Toronto: Canada Law Book, 2019), at para. 1.45, in
NunatuKavut
    Community Council Inc. v. Nalcor Energy
, 2014 NLCA 46, 358 Nfld. &
    P.I.E.R. 123, at para. 72, the Court of Appeal of Newfoundland and Labrador summarized
    the approach to be applied in deciding whether to grant a permanent injunction:

(i)
Has the claimant proven that all the elements of a cause
    of action have been established or threatened
? (If not, the claimant's suit
    should be dismissed);

(ii)
Has the claimant established to the satisfaction of the
    court that the wrong(s) that have been proven are sufficiently likely to occur
    or recur in the future that it is appropriate for the court to exercise the
    equitable jurisdiction of the court to grant an injunction?
(If not, the injunction
    claim should be dismissed);

(iii)
Is there an adequate alternate remedy, other than an
    injunction, that will provide reasonably sufficient protection against the
    threat of the continued occurrence of the wrong?
(If yes, the claimant
    should be left to reliance on that alternate remedy);

(iv) If not, are there any applicable equitable discretionary
    considerations (such as clean hands, laches, acquiescence or hardship)
    affecting the claimant's
prima facie
entitlement to an
    injunction that would justify nevertheless denying that remedy? (If yes, those
    considerations, if more than one, should be weighed against one another to
    inform the court's discretion as to whether to deny the injunctive remedy.);

(v) If not (or the identified discretionary considerations are
    not sufficient to justify denial of the remedy), are there any terms that
    should be imposed on the claimant as a condition of being granted the injunction?

(vi) In any event, where an injunction has been determined to
    be justified,
what should the scope of the terms of the injunction be so as
    to ensure that only actions or persons are enjoined that are necessary to
    provide an adequate remedy for the wrong that has been proven or threatened
or to effect compliance with its intent? [Emphasis added.]

[26]

Given their potentially broad and restrictive scope, permanent injunctions
    must be particularly tailored to the specific circumstances of the case in
    which they are ordered. It is therefore incumbent on the court asked to
    consider such relief to conduct a careful analysis and to limit the breadth of any
    permanent injunction to only what is reasonably necessary to remedy the specific
    wrong committed and prevent further harm to the claimant. See
Cambie
    Surgeries

Corp.
, at para. 39;
NunatuKavut
    Community Council Inc.
, at para. 71.

[27]

In their statement of claim, in addition to damages for defamation, the
    respondents claimed damages for intrusion upon seclusion and harassment. However,
    the respondents only pursued the defamation claim on summary judgment. The motion
    judge sets out clear reasons for her findings of defamation, which are not
    disputed on appeal. But she makes no determinations concerning the respondents
    claims in relation to intrusion upon seclusion or harassment.

[28]

Moreover, the motion judge makes no reference to nor carries out any
    discernible analysis of the rationale applied to impose the restriction of the
    appellants movements and communications, as ordered in subparas. 6 to 8 of her
    judgment. While she adverts, in para. 99 of her reasons, to the circumstances
    in which permanent injunctions against the publication of defamatory statements
    may be warranted, the motion judge does not reference any criteria respecting
    the advisability of granting a permanent injunction restraining the appellants
    movements or communications.

[29]

In the following excerpt from para. 100 of her reasons, the motion judge
    highlights aspects of the appellants conduct that she says, go to continue his
    campaign of harassment of the plaintiffs:

The fact that Mr. Castellano fabricated a reason to attend at
    Mr. Evans personal residence, when he had no legitimate purpose to go there,
    is further evidence of the lengths that Mr. Castellano is prepared to go to
    continue his campaign of harassment of the plaintiffs. At a Trial Board hearing
    regarding Mr. Castellanos conduct, the Trial Board found that Local 183s
    staff feared for their safety. The Trial Board expressed concern that Mr. Castellanos
    conduct would only escalate.

[30]

The motion judges above-noted observations about harassment are sandwiched
    between her conclusions in para. 100 about the prospect of the appellant
    continuing to make defamatory comments. Specifically, the first two and
    concluding two sentences of para. 100 focus on the question of the likelihood
    of the appellant continuing his defamatory postings.

[31]

Recall that a permanent injunction is a remedy that may be granted once
    a legal right or a cause of action has been finally adjudicated and proven on a
    balance of probabilities. Since defamation was the only tort that the motion
    judge found to have been established, the remedy sought and granted should have
    been only in relation to and for the purpose of preventing a continuation of that
    tort. As such, to justify the granting of a permanent injunction restricting the
    appellants movements or communications, the motion judge would have had to conclude
    that a permanent injunction restricting the appellants movements or communications
    with the respondents was reasonably necessary to remedy the defamation and to prevent
    the defamation campaign from continuing. She did not do so.

[32]

The motion judge erred in failing to carry out the required analysis and
    make the appropriate findings to determine whether such a broad permanent injunction,
    which severely restricts the appellants movements and communications, was
    necessary to put an end to the appellants defamation campaign.

[33]

Restrictions on a persons communications and expressions of opinion are
    extraordinary; court-ordered restraints on a persons physical freedom imposed in
    a civil dispute, outside certain statutorily prescribed circumstances, should be
    even more exceptional. The reasons for the latter caution are evident: they
    limit a persons freedom and breaches of such ordered limitations could result
    in penal sanctions, including imprisonment.

[34]

The motion judges findings regarding the likelihood that the appellant would
    continue his defamation campaign do not justify the broad restraining order enjoining
    the appellant from contacting, or communicating with, all the respondents. There
    is nothing in the evidence to suggest that restricting the appellants movements
    and communications is reasonably necessary to prevent the appellant from continuing
    his defamation campaign.

[35]

However, the respondents are not without recourse. If necessary, other
    remedies are available to restrain the appellants behaviour, such as issuing a
    trespass notice under the
Trespass to Property Act
, R.S.O. 1990, c.
    T.21, which Local 183 already did, or pursuing a peace bond under the
Criminal
    Code
, R.S.C. 1985, c. C-46:
Rainy River (Town) v. Olsen
, 2017 ONCA
    605, 64 M.P.L.R. (5th) 76, at para. 9.

[36]

In consequence, we set aside subparas. 6 to 8 of the motion judges judgment.

C.

Disposition

[37]

Accordingly, we admit the fresh evidence, allow the appeal in part, and set
    aside and amend the motion judges judgment as indicated above.

[38]

The appeal is otherwise dismissed.

[39]

The success on this appeal was mixed. We therefore make no order as to
    the costs of this appeal. Since the motion below was mostly devoted to the defamation
    and s. 137.1 motion issues on which the appellant was and remains unsuccessful,
    we do not disturb the costs order made below.

Released: February 3, 2020 (P.R.)

Paul Rouleau J.A.

L.B. Roberts J.A.

A. Harvison Young J.A.


