



COURT OF APPEAL FOR ONTARIO

CITATION: Sokoloff v. Tru-Path
    Occupational Therapy Services Ltd., 2020 ONCA 730

DATE: 20201117

DOCKET: C67387

Huscroft, Zarnett and Coroza JJ.A.

BETWEEN

Wendy Sokoloff and
    Wendy Sokoloff Professional

Corporation
    c.o.b. Sokoloff Lawyers

Plaintiffs (Respondents)

and

Tru-Path Occupational
    Therapy Services Ltd.

and
    Troy Campbell

Defendants (Appellants)

Shantona Chaudhury and
    Cristina Senese, for the appellants

Jonathan C. Lisus, Andrew
    Winton and Vlad A. Calina, for the respondents

Heard: July 20, 2020 by video
    conference; additional written submissions filed

On
    appeal from the order of Justice Edward M. Morgan of the Superior Court of
    Justice, dated July 25, 2019, with reasons reported at 2019 ONSC 4756.

Huscroft
    J.A.:

OVERVIEW

[1]

The appellants appeal from the order of the motion judge dismissing
    their motion to dismiss the respondents defamation action under s. 137.1 of
    the
Courts of Justice Act
, R.S.O. 1990, c. C.43 (
CJA
),
    Ontarios so-called anti-SLAPP (Strategic Litigation Against Public
    Participation) provision. The motion judge held that the impugned expression 
    messages on signs displayed on the sidewalk outside the respondents office 
    concerned the appellants private and commercial interests and did not relate
    to a matter of public interest within the meaning of s. 137.1(3) of the
CJA
.
    The motion judge went on to conclude that, in any event, the harm caused by the
    appellants alleged defamatory comments was sufficiently great as to favour of
    letting the respondents defamation action proceed pursuant s. 137.1(4)(b) of
    the
CJA
.

[2]

As I will explain, the motion judge erred by taking into account
    irrelevant considerations in determining whether the expression at issue
    related to a matter of public interest. Nevertheless, his conclusion is amply
    supported by the relevant considerations he relied upon, and by the record, and
    should be upheld. Accordingly, the s. 137.1 pretrial dismissal remedy was not
    available to the appellants.

[3]

I would dismiss the appeal and would deny leave to appeal costs for the
    reasons that follow.

BACKGROUND

[4]

The alleged defamatory statements were made by the appellant Troy
    Campbell, president of Tru-Path Occupational Therapy Services Ltd., on two
    occasions when he stood in the street outside the respondent Wendy Sokoloffs
    law office, Wendy Sokoloff Professional Corporation (Sokoloff Lawyers),
    holding signs that stated:

SOKOLOFF LAWYERS USED OUR COMPANYS REHAB SERVICES TO HELP MANY
    OF THEIR CLIENTS AB CLAIMS BUT WONT PAY.

OVER $1.3 MILLION OF OUR REHAB COMPANYS PAYMENT IS BEING
    SEIZED BY SOKOLOFF LAWYERS.

DEAR SOKOLOFF LAWYERS: YOU HAVE OUR REHAB COMPANYS NEARLY $1.4
    MILLLION DOLLARS. PAY YOUR UNDERTAKINGS NOW!

SOKOLOFF LAWYERS IS TAKING MONEY FROM OUR REHAB COMPANYS
    ACCOUNT TO PAY THEIR CLIENTS TORT DISBURSEMENT. HOW IS THIS LEGAL?

[5]

The first two statements were alleged to be defamatory. They were made
    in the context of a dispute over payment of the appellants fees for services
    provided to the respondents clients. The respondents have held back payment
    the appellants say they are owed by the respondents clients, pending
    authorization by their clients to pay the appellants.

The motion judges decision

[6]

The motion judge approached the first prong of the test under s.
    137.1 by asking what the impugned expression was about, or what it pertained
    to, as directed by this court in
1704604 Ontario Ltd. v. Pointes Protection
    Association
, 2018 ONCA, 685, 142 O.R. (3d) 161 (
Pointes (ONCA)
)
,
affd 2020 SCC 22 (
Pointes (SCC)
). It was not enough that the expression
    might address the field of law, legal ethics, health care, rehab services, or
    accident benefits. The real question was whether the expression concerned the
    respondents publicly scrutinized conduct as members of the legal profession
    or, instead, the respondents private conduct in carrying on their business.

[7]

The motion judge found that the interest of the public did not rise
    above mere curiosity or prurient interest and so did not meet the s. 137.1
    test. The sole issue between the parties was a contractual dispute  whether
    the respondents had to protect fees owing to the appellants by their clients when
    they received settlement funds for those clients. The motion judge found that Mr.
    Campbell acknowledged as much when he stated in cross-examination: the signs
    I was carrying in front of Sokoloff Lawyers offices are concerned with settled
    matters in which Wendy and Sokoloff Lawyers are holding onto  have seized 
    money belonging to Tru-Path.

[8]

The motion judge noted that Mr. Campbell did not say he was holding the
    signs because he was concerned about accident victims or the provision of
    services to the public. Nor did he profess to being concerned about the
    regulation of lawyers or their professional duties in handling trust funds. On
    the contrary, he stated specifically that these things did not concern him. The
    motion judge adopted the respondents submission in stating: you cannot be
    making statements about a matter of public interest if you profess to be
    indifferent to the public interest.

[9]

The motion judge acknowledged that a fee dispute between a solicitor and
    client could be a matter of public interest, as it touches on legal fees and
    access to justice. But this was not a dispute between a solicitor and client;
    it was a contractual dispute between two sets of regulated professionals and
    had a strictly private character. He added that if there was a public interest
    in anything in these circumstances, it was in having professionals resolve
    their differences in court rather than on the street. The motion judge described
    the expression as an unseemly attempt to embarrass the respondents.

[10]

This
    was sufficient to dispose of the appellants motion, but the motion judge went
    on to briefly consider the test under s. 137.1(4)(b). He stated that in light
    of his conclusion that there is no real public interest in the expression, the
    harm to the respondents would not have to be great in order to tip the balance
    in their favour. The motion judge found that the allegations against the
    respondents were serious and impacted their professional reputation, and that
    the harm to the respondents outweighed any imperative that the appellants air
    their financial dispute on the street corner.

THE POSITIONS OF THE PARTIES

The appellants

[11]

The appellants argue that the motion judge erred at the first
    step of the inquiry by finding that the appellants expression did not relate
    to a matter of public interest. Specifically, the motion judge erred (1) by
    taking into account the appellants presumed motives in finding that their
    expression did not relate to a matter of public interest; (2) by taking into
    account the manner of the appellants expression; (3) by making a qualitative
    assessment of the impact of the expression; and (4) by failing to consider that
    expression may relate to more than one matter. The appellants cite this courts
    decisions in
Levant v. Day
, 2019 ONCA 244, 145 O.R. (3d) 442, leave to
    appeal refused, [2019] S.C.C.A. No. 194 and
Nanda v. McEwan
, 2020 ONCA
    431, both cases in which a motion judge was found to have erred in considering
    the motivation for expression in determining the public interest question under
    s. 137.1(3).

[12]

In
    supplementary submissions made following the release of the Supreme Courts
    decision in
Pointes
, the appellants reiterate these arguments and
    emphasize that the phrase relates to a matter of public interest in s.
    137.1(3) should be given a broad and liberal interpretation. The appellants
    submit that the motion judges approach was misguided from beginning to end.
    The only question for the motion judge was: what is this expression about, and
    is this something that any segment of the public would have a genuine interest
    in knowing about? The appellants argue that the bar should be low in order
    that most cases be resolved at the balancing stage of the inquiry, thus
    promoting participation in public life.

[13]

The
    appellants summarize their position as follows: The manner in which a
    regulated profession such as a law firm renders service to its clients,
    including the arrangements it makes with heath care providers whose services
    are incorporated into its clients claims, is undoubtedly a subject that some
    members of the public have an interest in knowing about. The fact that the
    expression stemmed from a private dispute was irrelevant. The appellants
    submit that expression related to an organizations business dealings is a
    matter of public interest even if the business involved is not a regulated profession,
    citing
Bradford Travel and Cruises Ltd. v. Viveiros,
2019 ONSC 4587,
    at paras. 31-32.

The respondents

[14]

The
    respondents argue that the motion judge did not make any of the mistakes
    alleged by the appellants. Instead, the respondents say that Mr. Campbells
    statements in his affidavit and in cross-examination informed the context in
    which the nature of the expression at issue was to be determined. His evidence
    demonstrated his indifference to the public interest and he bluntly admitted
    that he was not interested in the ethical duties of lawyers holding clients
    funds on trust, testifying: I really dont give, you know, any nasal snots
    about that.

[15]

The
    respondents submit that Mr. Campbells statements made no reference to any of the
    public interest issues the appellants assert that the statements engage. Viewed
    objectively and in context, the statements concerned a private dispute over
    alleged unpaid accounts. The motion judge made no legal errors in dismissing
    the motion and his decision is entitled to deference.

[16]

In
    their supplementary submissions, the respondents say that the Supreme Court
    held that whether the expression relates to a matter of public interest is a
    contextual inquiry that asks what the expression in question is really about.
    In answering this question, the motion judge considered the circumstances that
    prompted Mr. Campbell to hold signs outside the respondents offices and gave
    full faith and credit to his professed indifference to the public interest. The
    motion judges decision that the expression concerned a private dispute was
    solidly rooted in the record, which demonstrated a lengthy financial dispute.

DISCUSSION

[17]

In
    its decision in
Pointes
, the Supreme Court affirmed this courts
    approach to identifying the public interest, following
Grant v. Torstar
    Corp.
, 2009 SCC 61, [2009] 3 S.C.R. 640. Expression is to be assessed as a
    whole and the question is whether some segment of the community would have a
    genuine interest in receiving information on the subject:
Pointes (SCC)
,
    at para. 102.

[18]

There is necessarily a normative aspect to what is genuinely a
    matter of public interest. As the Supreme Court put it, there is no single
    test for identifying the public interest; [t]he public has a genuine stake
    in knowing about many matters ranging across a variety of topics:
Pointes
    (SCC)
, at para. 27;
Grant,
at paras. 103, 106. The court described
    the proper interpretation of whether expression relates to a matter of public
    interest as both broad and liberal and generous and expansive:
Pointes
    (SCC)
, at paras. 24, 30.

[19]

But
    not everything
relates
to a matter of public interest. For example, it
    is not enough if expression simply makes reference to something that is of
    public interest, or to something that arouses the publics curiosity. Moreover,
    the courts instruction of interpretive generosity cannot be read in isolation.
    The scope for legitimate interpretation of vaguely worded concepts such as
    public interest must be informed by the purpose of the legislation: to safeguard
    the fundamental value that is public participation in democracy. The burden is
    on the moving party to establish that its expression relates to a matter of
    public interest, albeit that this burden is not an onerous one.

[20]

The
    appropriate inquiry is contextual in nature. However, the Supreme Court makes
    clear in
Pointes
that no qualitative assessment of the expression in
    question is to be made. It is enough that the expression relates to a matter of
    public interest. As Côté J. put it, it is not legally relevant whether the
    expression is desirable or deleterious, valuable or vexatious, or whether it
    helps or hampers the public interest:
Pointes (SCC)
, at para. 28. The
    question at the heart of s. 137.1(3) is this: Understood in its context, what
    is the expression really about?

[21]

This
    is essentially the approach set out by Doherty J.A. in this courts decision in
Pointes
, an approach that the motion judge followed. He asked: what
    is the expression about, or what does it pertain to?:
Pointes

(ONCA)
,
    at para. 54. But while the motion judge cited this courts instruction that the
    determination of public interest does not take into account the merits or
    manner of the expression, he went on to consider these things, along with the
    motive of Mr. Campbell, in finding that the expression was really about a
    private contractual dispute.

[22]

For example, the motion judge considered  and criticized  the way
    in which Mr. Campbell chose to express himself. He described Mr. Campbells
    street protest as lacking in decorum, characterizing it as an unseemly attempt
    to embarrass the respondents that serve[ed] no public interest. These
    considerations were not relevant to the question the motion judge had to decide
    under s. 137.1(3). Again, as Côté J. stated, it is not legally relevant
    whether the expression is desirable or deleterious, valuable or vexatious, or
    whether it helps or hampers the public interest:
Pointes (SCC)
, at
    para. 28.

[23]

Moreover,
    the motion judge considered Mr. Campbells motive in expressing himself,
    finding that he was indifferent to the public interest when he expressed
    himself:

To perhaps state the obvious, Mr. Campbell does not say that he
    was holding signs on the sidewalk because he was concerned about accident
    victims, or the provision of services to the public. Likewise, he was not
    concerned with the regulation of lawyers and their professional obligations in
    handling trust funds. When asked in cross-examination about a lawyers duty of
    loyalty to their client, and whether he was aware that lawyers cannot pay out
    trust funds without the clients authorization, he responded curtly and
    frankly: No, and it doesnt concern me.

As counsel for the Plaintiffs points out, you cannot be making
    statements about a matter of public interest if you profess to be indifferent
    to the public interest.

[24]

This,
    too, was inappropriate. The motion judge could properly consider the entire
    communication and the context in which it was made. But the motivation behind
    the communication 
why
the impugned expression occurred  is a
    subjective consideration that is not relevant to determining the objective
    nature of that expression. The quality or merits of the expression and the
    manner in which the expression is conveyed are similarly irrelevant.

[25]

Mistakes have sometimes been made in this regard  see
Levant
,
    at para. 11;
Ontario College of Teachers v. Bouragba
, 2019 ONCA
    1028, 51 C.P.C. (8th) 280, at paras. 31-33; and
Nanda
, at para. 37 
    so the point bears repeating: Motive, merit, and manner are irrelevant in
    determining whether expression relates to a matter of public interest under
    s.137.1(3).

[26]

Although
    the motion judge erred in taking into account irrelevant considerations, he
    also identified the relevant considerations and, in my view, he reached the
    correct result. His conclusion that the appellants expression did not relate
    to a matter of public interest is amply supported by the relevant
    considerations in the record.

[27]

The
    parties had a professional relationship that involved referrals. The
    respondents would refer clients who required occupational therapy to the
    appellants, who would provide services approved by the clients insurance
    company. The appellants would be paid by the clients insurance company, but if
    the insurer denied coverage the appellants might agree to treat the client and
    the client would be responsible for paying. In the event of a dispute between
    the insurer and the client, the respondents agreed to protect the appellants
    accounts. The respondents would hold funds received from the insurance company in
    trust and would pay the appellants if the clients did not object or the
    appellants proved their expenses at a hearing.

[28]

The
    respondents began to question charges made by the appellants and this led to a
    breakdown in the parties relationship. The appellants terminated the referral
    arrangement with the respondents in 2016 and, in 2018, brought an application
    against the respondents seeking payment of their accounts. The application was
    converted to an action and is ongoing.

[29]

This
    is the context in which Mr. Campbells expression occurred. The appellants were
    pressuring the respondents to pay monies they claim they are owed by their
    mutual clients. The fact that the parties are members of regulated professions
    does not make their dispute a matter of public interest, nor does the fact of
    unrelated proceedings by the Law Society of Ontario concerning the respondents make
    it so.

[30]

The
    appellants submit that the public, or an aspect of it, has an interest in the
    expression because if lawyers are not held to their undertakings to protect the
    fees of service providers, many involved in motor vehicle accidents would be
    deprived of rehabilitation services while their disputes are adjudicated. Referring
    to this Courts decision in
Platnick v. Bent
, 2018 ONCA 687, 426
    D.L.R. (4th) 60 (
Platnick

(ONCA
)), affd 2020 SCC 23 (
Platnick

(SCC)
) the appellants argue that because Mr. Campbells expression
    relates to a lawyers undertaking it therefore relates to the public interest
    in holding lawyers to their undertakings.

[31]

Plainly,
    the public has an interest in the ethical conduct of lawyers. But it does not
    follow that every lawyers transactions are a matter of public interest, nor
    does it follow that expression touching on the ethical conduct of an individual
    lawyer necessarily relates to the publics interest in the ethical conduct of
    lawyers.

[32]

The task of the motion judge under s. 137.1(3) is to determine what
    the expression is really about, bearing in mind the purpose of s. 137.1: protecting
    expression relating to matters of public interest and safeguarding the fundamental
    value of public participation in democracy:
Pointes (SCC)
, at para.
    30. Again, only expression
relating
to a matter of public interest
    attracts the statutes protection; expression that simply makes reference to
    something of public interest does not:
Pointes (SCC)
, at para. 29.

[33]

Understood
    in context, the expression at issue in this case is really about a private
    commercial dispute between the appellants and the respondents. The respondents
    happen to be lawyers. Mr. Campbells expression does not relate to a matter of
    public interest on that account.

[34]

Comparison to the Supreme Courts decision in
Platnick
is helpful in illustrating the nature of the public interest under s. 137.1(3).
    In that case the impugned expression was an email, sent by a lawyer who was the
    president-elect of the Ontario Trial Lawyers Association. The email, sent to
    several hundred members of the Association by a listserv, alleged that a doctor
    frequently engaged as a medical expert in insurance litigation had engaged in
    dishonest conduct. The Supreme Court agreed with this court that the expression
    related to a matter of public interest. In
Platnick (SCC)
, Côté J.,
    for the majority stated that the defendants email:

raises concerns regarding the truthfulness, reliability, and integrity
    of medical reports filed on behalf of insurers in the arbitration process. In
    turn, her email raises concerns regarding the integrity of the arbitration
    process itself and the proper administration of justice writ large. Further,
    the email is directed at a not insignificant number of individuals, who, more
    importantly, have a special interest in exactly that... (at para. 83).

[35]

The
    expression in this case and the context in which it occurred are in no way
    similar. Mr. Campbells expression raised no general concerns about the
    importance of lawyers respecting their undertakings, nor was it directed to
    anyone with an interest in the respondents conduct. The expression did not
    relate to a matter of public interest. It was really about the appellants
    commercial dispute with the respondents.

[36]

In
    summary, the motion judge did not err in concluding that the impugned expression
    did not relate to a matter of public interest. Accordingly, the motion failed
    at the public interest threshold and it is not necessary to proceed to the
    merits-based hurdle under s. 137.1(4)(a) or the public interest weighing
    exercise under s. 137.4(b).

LEAVE TO APPEAL COSTS

[37]

The
    motion judge initially awarded the respondents $75,000 in partial indemnity
    costs on the basis that they were the successful party. He did not consider s.
    137.1(8) of the
CJA
in making this costs award. That section provides:

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.

[38]

As
    this provision makes clear, the default position is the opposite of the
    position that normally obtains: a responding party who succeeds on the motion
    is
not
entitled to costs. However, the motion judge has the discretion
    to award costs if appropriate in the circumstances. No guidance is provided
    as to what it is that renders a costs award appropriate.

[39]

Following
    the release of his decision, the motion judge was alerted to his error in
    overlooking s. 137.1(8). He advised the parties that he was open to revisiting
    his costs decision and invited further submissions from the parties.

[40]

In
    his amended reasons, the motion judge determined that his award of costs would
    be unchanged and awarded the respondents $75,000 on a partial indemnity basis. The
    motion judge acknowledged the policy of making motions under s. 137.1
    accessible and that the no-costs presumption was not to be put aside lightly.
    However, he considered that the facts of this case were compelling: this was a
    financial dispute between members of two publicly regulated professions. The
    appellants were simply trying to get the respondents to pay a disputed bill and
    resorted to allegedly defamatory street corner placards rather than legal
    proceedings. In these circumstances, the appellants did not deserve costs
    immunity. Nevertheless, the motion judge exercised his discretion to reduce the
    costs award somewhat (from the requested $102,000 on a partial indemnity scale),
    bringing it more closely in line with the costs incurred by the appellants.

[41]

The
    decision to award costs is a discretionary one that is entitled to deference.
    Leave to appeal a costs order is granted only where there are strong grounds
    upon which the court could find that the motion judge made an error in
    principle or the costs award is plainly wrong:
Hamilton v. Open Window
    Bakery Ltd
.
, 2004 SCC 9, [2004] 1 S.C.R.
    303, at para. 27.

[42]

In
    this case, the legislation reverses the ordinary presumption that the
    successful party is entitled to costs but empowers the motion judge to award
    costs to the successful party if the motion judge finds that costs are
    appropriate in the circumstances. Thus, the decision to award costs is
    discretionary and the same deferential standard applies on appeal.

[43]

I see no error here that would allow this court to disturb the motion
    judges costs award. Although the motion judge misstated when the appellants
    resorted to street protest  they commenced their application against the
    respondents in September 2018, after Mr. Campbells initial demonstration but
    before his second one  that error is not significant. As the motion judge
    noted, in
Veneruzzo v. Storey
, 2018 ONCA 688, 23 C.P.C. (8th) 352, Doherty
    J.A. stated, at para. 39, [t]he purpose underlying the costs provisions in s.
    137.1 disappears when the lawsuit has none of the characteristics of a SLAPP,
    and the impugned expression is unrelated to a matter of public interest. The
    motion judge found that the appellants were simply trying to get the
    respondents to pay a disputed bill for their services. It was open to him to
    conclude that they did not deserve costs immunity in all of the circumstances
    of this case.

[44]

It was not necessary to say more than this, and I should not be
    taken as endorsing the suggestion that the exercise of the right to protest to
    resolve a dispute necessarily exposes a party to cost consequences under s. 137.1(8).

[45]

I
    would add these comments. First, although the dismissal of a motion at the
    137.1(3) threshold stage is a relevant consideration in determining whether to
    award costs to a plaintiff, it is not determinative of the appropriateness of a
    costs order. There will be cases in which the assertion of the public interest
    is wholly lacking in merit, but there will also be cases in which the moving
    party may have an arguable basis to assert that their expression relates to a
    matter of public interest. The award of costs in the former may be easier to
    justify in the former than the latter cases, but every case is different and
    the law will no doubt continue to develop in this regard.

[46]

Second,
    although in
Pointes
the Supreme Court deprecated reliance on the
    traditional SLAPP indicia identified by this court  (1) a history of the
    plaintiff using litigation or the threat of litigation to silence critics; (2)
    a financial or power imbalance that strongly favours the plaintiff; (3) a
    punitive or retributory purpose animating the plaintiffs bringing of the
    claim; and (4) minimal or nominal damages suffered by the plaintiff  it did
    so in the context of the inquiry at the weighing stage, s. 137.1(4)(b), in
    order to ensure the primacy of the text of the statute and the considerations
    it sets out: see
Pointes (SCC
), at paras. 78-80. The court did
not
hold the traditional SLAPP indicia are irrelevant  they may bear on the
    analysis under s. 137.1(4)(b), provided the analysis remains tethered to the
    statutory criteria  and, in any event, the court said nothing about their
    relevance to the question of costs.

[47]

Finally,
    as Doherty J.A. explained in
Pointes (ONCA)
, at para. 73, a motion under
    s. 137.1 is meant to be a screening or triage device designed to eliminate
    certain claims at an early stage of the litigation process. It is not an
    alternative means of trying a claim nor is it a form of summary judgment, and
    it is important to maintain a sense of proportionality where costs are
    concerned. The motion judges decision to reduce the respondents partial
    indemnity costs was appropriate.

CONCLUSION

[48]

I
    would dismiss the appeal.

[49]

I
    would refuse to grant leave to appeal costs.

[50]

The
    parties are encouraged to reach an agreement on the costs of this appeal. If
    they cannot do so, they may make three-page submissions within 30 days of
    these reasons.

Released: November 17, 2020 (G.H.)

Grant Huscroft J.A.

I agree. B. Zarnett J.A.

I agree. S. Coroza J.A.


