



COURT OF APPEAL FOR ONTARIO

CITATION: Ontario College of Teachers v. Bouragba, 2019 ONCA
    1028

DATE: 20191231

DOCKET: C66080

Lauwers, Fairburn and Zarnett JJ.A.

BETWEEN

The
    Ontario College of Teachers

Plaintiff (Responding Party/Respondent)

and

Ahmed Bouragba

Defendant (Moving Party/Appellant)

Ahmed Bouragba, acting in person

Christine Lonsdale and Charlotte-Anne Malischewski, for
    the respondent

Heard: September 27, 2019

On
    appeal from the order of Justice Andra Pollak of the Superior Court of Justice,
    dated September 26, 2018, and from the costs decision, with reasons reported at
    2018 ONSC 6481.

Lauwers
    J.A.:

I.

Overview

[1]

Mr. Bouragba brought a motion to dismiss the defamation lawsuit
    brought against him by the Ontario College of Teachers, under s. 137.1 of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43
.
    This is a relatively new provision designed to permit judicial scrutiny of
    lawsuits allegedly brought to silence or financially punish critics who have
    spoken out on matters of public interest, known as Strategic Lawsuits Against
    Public Participation, or SLAPP. The seminal case on s. 137.1 is
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. As Doherty J.A. observed in
Pointes
, at
    para. 3: 
Defamation lawsuits, perhaps because of the relatively
    light burden the case law places on the plaintiff, have proved to be an ideal
    vehicle for SLAPPs. Section 137.1 is a carefully designed approach to
    discerning whether a lawsuit is improper as a SLAPP or is validly brought.

[2]

The motion judge denied Mr. Bouragbas motion to dismiss
    the Colleges defamation action on the ground that it was a SLAPP, finding that
    he had not discharged his burden of proving that the defamation proceeding
    arose from an expression that relates to a matter of public interest. Mr.
    Bouragba appeals.

[3]

The College is the self-governing regulatory body
    for teachers in Ontario. Mr. Bouragba is a member of the College and was a
    member of the Colleges Council from July 1, 2012 to October 2, 2014, when he
    resigned.

[4]

Mr. Bouragba sent several communications to past
    and present members of the Council, the Attorney General of Ontario, and the
    Minister of Education. In some of the communications he advocated for a public
    inquiry into a wide range of alleged misconduct on the part of the College and
    people affiliated with it.

[5]

The College sued, alleging that the communications
    were defamatory, because they allege that the College, its Council and its
    leadership: are dishonest in the performance of their mandate; fabricate
    complaints; collude with their independent legal counsel and school boards;
    take action against members of the profession and Council for improper reasons;
    assemble biased panels; harass and discriminate against children, parents and
    elected Council members; and perform their duties in bad faith.

[6]

There is a history between the appellant and the
    College that forms part of the context. First, the College processed a complaint
    about the appellant made by
Diane Lamoureux, then the Principal of an
    Ottawa area school attended by Mr.  Bouragbas son. The Investigation
    Committee declined to refer the complaint to the Discipline Committee but
    instead cautioned the appellant. Its decision was upheld by the Divisional
    Court: 2018 ONSC 6935.

[7]

Second, the appellant made a complaint against
    three College members.
The Investigation Committee declined to refer the
    complaint to the Discipline Committee, and its decision was upheld by the
    Divisional Court: 2018 ONSC 6940.

[8]

Third, the appellant filed a complaint with the Human Rights
    Tribunal of Ontario. All but one allegation has been dismissed: 2017 HRTO 523.
    The hearing on the single outstanding issue was to be heard in June 2019.

[9]

Fourth, the appellant sued the College and a number of parties including
    the Colleges Director of Corporate and Council Services, Richard Lewko,
    personally. The action has been stayed: 2016 ONSC 7798. The appellant has
    pursued motions to have the judge who ordered the stay recused for bias.


II.

The Appellants Position

[10]

The appellant expressed frustration in his
    factum and in his oral argument with the motion judges failure to engage with
    the arguments that he put forward. First, he argued that the College, as a
    public body, is not capable of initiating a defamation suit, relying on
Niagara
    Peninsula Conservation Authority v. Smith
,
    2017 ONSC 6973, at paras. 11, 54.

[11]

Second, the appellant
    noted that the motion judge failed entirely to mention any content or a
    subject of my three impugned communications  [and] also failed to mention my
    position as a defendant. He questioned whether the motion judge had even read
    the impugned communications. His position, as expressed in his factum before
    the motion judge was this:

It is beyond question that
    the expressions in question relate to a matter of public interest, to wit: the
    governance of the College, it is a body created by the government of Ontario.
    Its action or inaction in its sphere of responsibility does affect the public
    welfare (students safety and well being).

[12]

Third, the appellant
    pointed out that the motion judge adopted the plaintiffs speculation by
    copying it and pasting it directly into her decision with no adequate analysis.
    This led the appellant to suggest that the motion judge was not impartial.

III.

The Governing
    Principles Concerning SLAPP Litigation

[13]

This court addressed s. 137.1 of the
Courts
    of Justice Act
in a group of linked decisions, the heart of
    which is
1704604 Ontario Ltd. v. Pointes Protection Association
.

The associated decisions were
Fortress Real Developments
    Inc. v. Rabidoux
, 2018 ONCA 686, 426 D.L.R. (4th) 1;
Platnick v. Bent
,
    2018 ONCA 687, 426 D.L.R. (4th) 60,

leave
    to appeal granted and appeal heard and reserved November 12, 2019,  [2018]
    S.C.C.A. No. 466;
Veneruzzo v. Storey
, 2018 ONCA 688, 23 C.P.C. (8th)
    352;
Armstrong v. Corus Entertainment Inc.
, 2018 ONCA 689, 143 O.R. (3d)
    54; and
Able Translations Ltd. v. Express International Translations Inc.
,
    2018 ONCA 690, 428 D.L.R. (4th) 568
.

[14]

In
Pointes
,

Doherty J.A. noted that the scheme in s. 137.1 of the
Courts
    of Justice Act
has three features or
    steps. The first is that for the section to be engaged, the expression must
    relate to a matter of public interest under s. 137.1(3), which provides:

(3) [A] judge
    shall, subject to subsection 4, dismiss the proceeding against the person if
    the person satisfies the judge that the proceeding arises from an expression
    made by the person that relates to a matter of public interest.

[15]

The second feature is the merits-based hurdle. It
    is set out in s. 137.1(4)(a), which provides:

(4) A judge shall not
    dismiss a proceeding under subsection (3) if the responding party satisfies the
    judge that,

(a) there are grounds to
    believe that,

(i) the proceeding has substantial merit, and

(ii) the moving
    party has no valid defence in the proceeding; and

[16]

The third feature is the public interest hurdle. It
    is found in s. 137.1(4)(b), which provides:

(4) A judge shall not
    dismiss a proceeding under subsection (3) if the responding party satisfies the
    judge that,

(b) the
    harm likely to be or have been suffered by the responding party as a result of
    the moving partys expression is sufficiently serious that the public interest
    in permitting the proceeding to continue outweighs the public interest in
    protecting that expression.

[17]

The first step in the required analysis is to
    identify the relevant public interest, if any. This requirement is intended
    to be based on a broad reading of the meaning of public interest so that
    public discourse on matters of public interest is not unduly discouraged:
Pointes
,
    at para. 57. Doherty J.A. did not identity an exhaustive list of topics that
    fall under the rubric of public interest but noted that
Grant v.
    Torstar Corp
., 2009 SCC 61, [2009] 3 S.C.R. 640 provided
    considerable assistance.

[18]

Of significance to this case, Doherty J.A. noted,
    at para. 47, that s. 137.1 does not fix on the plaintiffs purpose or motive
    in bringing the claim as the determining factor. Regarding the concept of public
    interest, he noted, at para. 65:

In summary, the concept of public interest as
    it is used in s. 137.1(3) is a broad one that does not take into account the
    merits or manner of the expression,
nor the motive
of the author. The
    determination of whether an expression relates to a matter of public interest
    must be made objectively, having regard to the context in which the expression
    was made and the entirety of the relevant communication. An expression may
    relate to more than one matter. If one of those matters is a matter of public
    interest, the defendant will have met its onus under s. 137.1(3).
    [Emphasis added.]

[19]

Doherty J.A. returned to the issue of motive at para.
    94, when he contrasted the assessment of the public interest in s. 137.1(3)
    with the public interest hurdle in s. 137.1(4)(b), which is the third step in
    the analysis. He said, at para. 94: Unlike the public interest inquiry in s.
    137.1(3), in which the quality of the expression or the motivation of the
    speaker are irrelevant , both play an important role in measuring the extent
    to which there is a public interest in protecting that expression.
He
    added, at para. 95:

In addition to the quality of the expression and
    the
defendants motivation for making the expression
, the consequences
    of the plaintiffs claim will figure into the weight to be given to the public
    interest in protecting that expression. Evidence of actual libel chill
    generated by the plaintiffs claim can be an important factor in the public
    interest evaluation required under s. 137.1(4)(b):
Able Translations Ltd.
,
    at para. 102. [Emphasis added.]

[20]

Doherty J.A. noted, at para. 96, in relation to the
    third or balancing step: Because the balancing of the competing public
    interests will often be determinative of the outcome of the
s. 137.1
motion, and because the analysis contains an element of subjectivity,
    it is crucial that motion judges provide full reasons for their s. 137.1(4)(b)
    evaluations.

IV.

The Motion Judges Reasons

[21]

The motion judges reasons were sparse, not full. She noted, at paras.
    23, 25:

The Colleges position is that Mr. Bouragbas communications
    are related to his personal grievances with the College. They were personal
    attacks on individuals within the College.



The College submits that although it has a public interest
    mandate, not all comments made about the College are matters of public
    interest. Mr. Bouragbas emails are solely related to:

(a)

his
    dissatisfaction with a decision of the Investigation Committee which cautioned
    him.

(b)

his
    dissatisfaction with three decisions of the Investigation Committee which
    declined to refer three of his complaints against members of the College
    involved in his sons education.

(c)

his
    personal belief that the College conspired with Paul Marshall to cause teachers
    and members of the Board to take steps to remove his son from school in Ottawa.

(d)

his
    personal belief that the College fabricates complaints in order to retaliate
    against him and other former members of the College council;

(e)

his personal belief that staff lied because they were mistaken about the
    date on which Paul Marshall first commenced providing legal services as
    independent legal counsel to panels.

[22]

The motion judge concluded, at para. 28:

Applying the test in
Grant v. Torstar Corp
., 2009 SCC 61 (S.C.C.), I find that Mr. Bouragbas private disputes
    with the College are not matters inviting public attention, affecting the
    welfare of citizens, or which are the subject of any controversy other than
    with Mr. Bouragba. I agree with the submissions of the College that the
    communications relate to private grievances. I find that Mr. Bouragba has not
    satisfied his burden under s.  137.1(3). It is therefore not necessary for
    the Court to consider the other criteria set out in s. 137.1 of the
CJA
.

[23]

The motion judges costs endorsement was very brief and did not describe
    the detailed submissions she considered. Nor did she refer to s. 137.1(8),
    which provides:

(8) If a judge does not
    dismiss a proceeding under this section, the responding party is not entitled
    to costs on the motion, unless the judge determines that such an award is
    appropriate in the circumstances.


V.

The principles applied

[24]

It is surely right, as the motion judge paraphrased the College saying:
    The College submits that although it has a public interest mandate, not all
    comments made about the College are matters of public interest. The difficulty
    is with her adoption of the Colleges argument that the appellants emails are
    solely related to his personal grievances with the College. They were not.

[25]

The Colleges statement of claim refers to three communications in
    particular. The first is an email to Michael Salvatori, Registrar of the
    College, copied to past and present members of the Council on June 4, 2015. The
    statement of claim does
not
quote the first sentence of the
    communication, which states: Please find attached some documents and a request
    for a public inquiry to investigate the Colleges conduct and faith.

[26]

In the email the appellant cited his own personal experience to explain
    his loss of confidence in the College. He went on to cite other situations in
    which the College misbehaved, in his opinion, which did not involve him.

[27]

The second communication was a letter sent by the appellant and a
    colleague to the Attorney General dated June 5, 2016. The letter states:

We address this letter to you as the new Attorney General of
    Ontario in a request to review the investigation and discipline processes and
    decisions at the Ontario College of Teachers.

Despite the Report and Recommendations of the Chief Justice
    Patrick Lasage [sic] in 2012, there continues to be lack of transparency and
    accountability in the manner the College investigates complaints.

[28]

The writers state:

A Public Inquiry is requested to explore the influence
    exercised by school boards over the investigation and discipline process and
    decisions made by the Investigation and Discipline Committees of the College
    over the last five years, as a systemic issue for which the College is not under
    any scrutiny, since it enjoys immunity from any oversight in Ontario.

[29]

This letter to the Attorney General must be set in context, since the
    appellant and his colleague (whom the College did not sue) sent a follow up
    letter on June 30, 2016, to which they attached a brief entitled: Reasons for
    a Public Inquiry into the Ontario College of Teachers. The brief was detailed and
    made a number of complaints. It called for a public inquiry to examine and
    investigate the following issues in protecting the Public Interest, and then
    listed: the manner in which public appointments to the Public Interest Committee
    of the College and to College Council are made; the preferential treatment of
    school board employer complaints over complaints by the public or members of
    the College; and conflict of interest and other concerns, because there is no
    whistleblower policy. The brief ended with a list of [l]egislative issues
    requiring review of the OCT Act, 1996 and its Bylaws.

[30]

The third communication was an email dated July 18, 2016 inviting
    council members to witness a discipline hearing. The email complained that the
    College falsified the teachers complain [sic] against his vice-principal and
    invited Council members to attend the hearing so that they could see how the
    hearing unfolded, in order to enhance transparency according to Colleges
    mission.

[31]

Although the motion judge adverted to the requirement to view the
    communications objectively, she did not properly apply the test. Viewed
    objectively, and divorced from any consideration of the merits or manner of
    expression and the motive of the speaker, the communications could not be
    reasonably said to relate solely to private grievances. The motion judges
    finding to this effect was a palpable and overriding error.

[32]

The finding also appears to have been impermissibly tainted
    by a consideration of the appellants motive. As noted at the outset, at the first
    threshold step of the analysis, in assessing whether the expression is a matter
    of public interest under s. 137.1(3) of the
Courts of Justice Act
, the
    court is not to consider the motivations of the allegedly defamatory speaker.
    Motivations do play a role in the third step relating to the public interest
    hurdle. However, in this case the motion judge appears to have taken the
    appellants motivations into account in concluding, at step one, that the
    appellant was expressing private grievances, so that the public interest
    element had not been satisfied.
The motion
    judge made the same error criticized by this court in
Levant v.
    Day
, 2019 ONCA 244,
145
    O.R. (3d) 442,
at paras. 11-12.

[33]

Moreover, the test is meant to set a low bar, as Doherty
    J.A. noted in
Pointes
, at para. 65:
    
An expression may relate to more than one matter.
    Even so, he added: 
If one of those
    matters is a matter of public interest, the defendant will have met its onus
    under s. 137.1(3).
In my view, the motion judge misapprehended the
    test under s. 137.1 as explicated in
Pointes
.
The appellants communications are mixed, but many
    elements manifestly engage the public interest. Whether those elements are
    sufficient to attract the protection of s. 137.1 must be assessed further at
    the second step,
the merits-based hurdle, and at
    the third step, the public interest hurdle.

[34]

However, the motion judge stopped her analysis at the first
    step, concluding that Mr. Bouragba did not satisfy his burden to establish that the
    communications relate to a matter of public interest. The motion judge did not proceed
    to the second and third steps of the
Pointes
analysis.
I would be reluctant to carry forward the reasoning
    process required by s. 137.1 on appeal without full argument on the
    merits-based hurdle and the public interest hurdle, and in the absence of careful
    analysis by a motion judge.

[35]

The appellants criticisms of
    the adequacy of the motion judges reasons are understandable. Most
    importantly, the reasons glossed over the appellants arguments.

In
R. v. Walker
, [2008] 2
    S.C.R. 245,
2008 SCC 34,
Binnie J. stated, at para
    20: "Reasons are sufficient if they are responsive to the case's live issues
    and the parties' key arguments. He noted that: Their sufficiency should be
    measured not in the abstract, but as they respond to the substance of what was
    in issue."

[36]

As McLachlin C.J. stated in
R.
    v. R.E.M
., [2008] 3 S.C.R. 3 at para. 64
,
a trial judge is not obliged to discuss all of the
    evidence on any given point, provided the reasons show that he or she grappled
    with the substance of the live issues on the trial.
The purposes for good reasons were set out by
LHeureux-Dubé
    J.
in
Baker v. Canada (Minister of
    Citizenship and Immigration),
[1999] 2 S.C.R. 817, at para. 39:

Reasons foster better decision making by ensuring that issues
    and reasoning are well articulated and, therefore, more carefully thought out.
    The process of writing reasons for decision by itself may be a guarantee of a
    better decision.  Reasons also allow parties to see that the applicable
    issues have been carefully considered, and are invaluable if a decision is to
    be appealed, questioned, or considered on judicial review: Those affected may
    be more likely to feel they were treated fairly and appropriately if reasons
    are given (internal citations omitted).

See generally
R.
    v. Sheppard
,
2002 SCC 26,
[2002] 1 S.C.R. 869, per Binnie J., at para. 55; and
Vancouver
    International Airport Authority v. Public Service Alliance of Canada
, 2010 F.C.A. 158,
[2011] 4 F.C.R. 425,
per Stratas J.A., at para. 16. See also
Clifford
    v. Ontario Municipal Employees Retirement System
, 2009 ONCA 670;
98 O.R. (3d) 210
.

[37]

Although the motion
    judges reasons inadequately addressed the appellants arguments, there is no
    basis for the appellants suggestion that the motion judge showed bias. An
    allegation of bias is serious and is not to be made lightly. As Robertson J.A.
    observed in
Murray v. New Brunswick Police Commission
, 389
    N.B.R. (2d) 372, at para. 10, unfortunately, self-represented litigants sometimes
    operate, like Mr. Bouragba,

on the mistaken assumption that if he or she is
    unsuccessful on any ruling it is because of bias on the part of the
    decision-maker. This was an unwarranted allegation.

VI.

Disposition

[38]

I would allow the appeal, set aside the judgment and the order for
    costs, and remit the appellants motion to the Superior Court to be heard by a
    different judge.

Released: P.L. December 31, 2019

P. Lauwers J.A.

I agree. Fairburn
    J.A.

I agree. B. Zarnett
    J.A.


