



COURT OF APPEAL FOR ONTARIO

CITATION: Veneruzzo v. Storey, 2018 ONCA 688

DATE: 20180830

DOCKET: C63416

Doherty, Brown and Huscroft JJ.A.

BETWEEN

Louis Veneruzzo, Brenda Veneruzzo, Jason
    Veneruzzo
and Jennifer Veneruzzo

Plaintiffs
(Respondents)

and

Darryl Storey

Defendant
(Appellant)

Brendan F. Morrison and Jordan R. D. Lester, for the
    appellant

Daniel Lester and Jeffrey Moorley, for the respondents

Heard: June 28, 2017

On appeal from the order of Justice Douglas C. Shaw of
    the Superior Court of Justice, dated January 27, 2017, with reasons reported at
    2017 ONSC 683, 7 C.P.C. (8th) 430, and from the costs order dated April 24,
    2017, with reasons reported at 2017 ONSC 2532, 9 C.P.C. (8th) 136.

Doherty J.A.:

A.

overview

[1]

The respondents (plaintiffs in the action) are all close relatives of
    Jasmine Veneruzzo (Ms. Veneruzzo). Ms. Veneruzzo died in a car accident in
    December 2008. The appellant (defendant in the action) was driving the vehicle that
    struck Ms. Veneruzzos car. The appellant was charged with criminal negligence
    causing death, and eventually pleaded guilty to dangerous driving causing death
    in September 2012. In January 2013, he received a penitentiary sentence of two
    years. A related civil action was settled in 2015.

[2]

In June and July 2015, the appellant posted several comments on his
    Facebook page. Those comments referred to various things, including the
    accident that resulted in Ms. Veneruzzos death, her driving habits, the veracity
    of representations made about Ms. Veneruzzo in the proceedings, and the conduct
    of the respondents and other relatives of Ms. Veneruzzo in the aftermath of the
    accident.

[3]

The content of some of the posts led the respondents to commence an
    action for libel and related claims. The appellant filed a Statement of Defence
    in which he advanced the defences of truth, fair comment, and qualified
    privilege. At para. 18 of the Statement of Defence, he alleged that the
    comments that form the basis of the Plaintiffs claim relate to matter [
sic
]
    of significant public interest.

[4]

In June 2016, the appellant moved under s. 137.1 of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43 (
CJA
)
for an order dismissing the
    respondents action. He alleged that the claims made against him arose from
    expressions that he made on matters of public interest. He further argued that
    the respondents could not meet the criteria in s. 137.1(4).

[5]

The motion judge dismissed the motion, holding that the appellant had
    failed to demonstrate that his Facebook posts related to matters of public interest
    as required by s. 137.1(3). Having found that the appellant failed to meet that
    threshold requirement, the motion judge did not go on to consider the other
    requirements in s. 137.1(4).

[6]

The motion judge also awarded costs to the respondents (plaintiffs in
    the action), despite the language of s. 137.1(8), which creates a presumption
    that a responding party should not have its costs when a s. 137.1 motion is
    dismissed.

[7]

The appellant appeals from the order dismissing the s. 137.1 motion and,
    should the main appeal fail, seeks leave to appeal from the costs order. For
    the reasons that follow, I would dismiss the appeal, grant leave to appeal
    costs, and dismiss that appeal.

B.

The main appeal

(i)

The Facts

[8]

On December 3, 2008, the appellant, who was a police officer, was
    driving his police cruiser over 200 km/hr in a 90 km/hr zone on a highway. He
    had not engaged the siren or any emergency lighting on the vehicle.

[9]

The appellants vehicle collided with the vehicle driven by 18-year-old Ms.
    Veneruzzo as she pulled out onto the highway. Ms. Veneruzzo died at the scene.

[10]

The
    appellant was charged with criminal negligence causing death. At the end of the
    Crowns case at trial, he entered a plea to the included offence of dangerous
    driving causing death. In January 2013, the appellant was sentenced to two
    years imprisonment on the basis of a joint submission put forward by counsel. At
    the sentencing hearing, the appellant publicly apologized for his conduct.

[11]

Between
    June 20 and July 8, 2015, after the appellant had completed his sentence, he
    made a series of posts on his personal Facebook page, which was accessible to
    the public. The posts referred to a variety of topics. One alluded to the death
    of a police officer, who was a friend of the appellant, in a roadside accident.
    Others referred to the accident in which Ms. Veneruzzo was killed and the
    appellant was injured. Still other posts referred to the cruiser the appellant
    was driving at the time of the accident, the deceaseds driving conduct at the
    time of the accident and on other occasions, the conduct of the deceaseds
    relatives, and what the appellant alleged were falsehoods put forward by the
    respondents about Ms. Veneruzzos status as a high school student and her
    future plans at the time of her death.

(ii)

Reasons
    of the Motion Judge

[12]

In
    holding that the appellant had failed to show that the statements on his
    Facebook page related to a matter of public interest, the motion judge, at paras.
    30-31, correctly relied on the analysis of public interest in
Grant v.
    Torstar Corp.
, 2009 SCC 61, [2009] 3 S.C.R. 640: see
1704604 Ontario Ltd.
    v. Pointes Protection Association
, 2018 ONCA 685, at para. 58 (released
    concurrently with these reasons).

[13]

The
    motion judge, after specifically referring to the need to consider the subject
    matter of the comments as a whole, offered his characterization of the
    subject matter, at para. 34:

Mr. Storeys Facebook posts are concerned with two matters.
    First, he implies that Ms. Veneruzzo caused or contributed to the collision. He
    states that on a prior occasion she ran a stop sign at Highway 130 and Twin
    City Crossroads, that she had previously texted while driving and, on the day
    in question, that she was late for work. Second, his posts are critical of the
    Veneruzzo family for misrepresenting Ms. Veneruzzos education and career path
    at the time of the collision and for being intoxicated and belligerent towards
    police on the evening of Ms. Veneruzzos funeral. These two matters do not go
    beyond Mr. Storeys own personal interests.

[14]

The motion judge, at para. 37, drew a distinction between matters of
    public interest and a matter that, because of its notoriety, might be of some
    interest to the public:

Although notoriety may well have
    attached to the collision and to the death of Ms. Veneruzzo and to the ensuing
    criminal and civil proceedings, these were events which interested the public,
    not events which were in the public interest. These events did not affect the
    welfare of the public. Mr. Storeys posts did not assist the public to better
    understand and make decisions on issues in which they had a stake. The posts
    did not extend beyond Mr. Storeys own interests, to the interests of the
    community as a whole, or at least to a meaningful segment of the community.

(iii)

Arguments on Appeal

[15]

The
    appellant accepts that the motion judge properly identified
Grant v.
Torstar

Corp.
as the guiding authority when interpreting the phrase public
    interest in s. 137.1(3) of the
CJA
. Indeed, counsel for the appellant
    relies on the same passages cited by the motion judge in his reasons.

[16]

Counsel
    alleges two errors. He contends that the motion judge:

·

Failed to consider the relevant Facebook posts as a whole; and

·

Characterized the phrase public interest too narrowly.

(iv)

Did the Motion Judge Fail to Consider the Posts as a Whole?

[17]

A
    failure to consider the expressions that are the subject matter of the lawsuit
    as a whole and in the context in which they are made constitutes a failure to
    apply a controlling legal principle and is an error in law. Correctness is the
    appropriate standard of review in respect of this ground of appeal:
Canada
    (Director of Investigation and Research) v. Southam Inc.
, [1997] 1 S.C.R.
    748, at para. 35;
CNH Canada Ltd. v. Chesterman Farm Equipment Ltd.,
2018
    ONCA 637, at para. 34.

[18]

The
    appellant faces a difficult task in advancing this argument. The motion judge
    expressly and repeatedly acknowledged that in determining whether the
    expression related to a matter of public interest, he must consider the
    publication as a whole: see paras. 30 and 33. The appellant must convince
    this court that, despite those clear statements, the motion judge did not
    consider the publications as a whole.

[19]

The
    appellants submission that the motion judge failed to consider the posts as a
    whole comes down to the argument that there are comments in some of the posts
    that do not relate to Ms. Veneruzzo, the respondents, or the accident. He
    submits that at least some of those unrelated comments refer to matters of
    public interest (e.g. the post about police safety at roadside stops). On the
    appellants argument, these comments are sufficient to place the entirety of
    the expressions contained in the posts under the public interest protection of
    s. 137.1(3).

[20]

I cannot accept this submission. The appellant would have the court look
    at isolated portions of the communications without regard to the nature of the
    expressions that actually give rise to the proceeding. Section 137.1(3) makes clear
    that the expression at issue is the expression that gives rise to the
    proceeding. That expression must relate to a matter of public interest. The
    expressions giving rise to this proceeding are those relating to Ms. Veneruzzo
    and the respondents. A defendant who makes statements about a purely private
    matter cannot gain the protection of s. 137.1(3) by interspersing references to
    some other topic that may relate to a matter of public interest.

[21]

I
    agree with the respondents that the motion judge was not obliged to summarize
    every comment that the appellant made in the posts to demonstrate that he
    considered all of the comments in determining the subject matter of the
    expression that gave rise to the claim. The passages excerpted by the motion
    judge at para. 13 of his reasons refer to the parts of the posts that were most
    germane to his assessment of whether the lawsuit arose out of expressions that
    relate to a matter of public interest.

[22]

Nothing
    in the motion judges reasons leads me to conclude that he did not, as he said
    he did, consider the relevant communications as a whole in deciding whether
    they related to a matter of public interest.

(v)

Did
    the Motion Judge Characterize the Phrase Public Interest too Narrowly?

[23]

The
    definition of the phrase public interest in s. 137.1(3) raises a question of
    law reviewable on a correctness standard. The application of the proper
    definition to the facts of a particular case raises a question of mixed fact
    and law. Absent the identification of an extricable error of law or a palpable
    and overriding factual error, an appellate court will defer to the motion
    judges assessment:
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R.
    235, at paras. 33-35;
Ledcor Construction Ltd. v. Northbridge Indemnity
    Insurance Co.
, 2016 SCC 37, [2016] 2 S.C.R. 23, per Wagner J., as he then
    was, at paras. 35-36, and per Cromwell J. (concurring), at paras. 100-101;
Benhaim
    v. St-Germain
, 2016 SCC 48, [2016] 2 S.C.R. 352, at paras. 36-39.

[24]

The
    phrase public interest takes its meaning from the circumstances of the
    specific case. An exhaustive definition is impossible. One must ask: what is
    the communication impugned in the lawsuit about?

[25]

I
    agree with the motion judges characterization of the relevant posts: see
above at
para. 13. Put a little
    differently, I would characterize the comments insofar as they related to Ms.
    Veneruzzo, the accident, and the respondents, as an attempt to create a new
    narrative about the accident. In that narrative, the appellant plays the role
    of victim (e.g. the references to his injuries) and shifts the focus of the
    cause of the accident from his dangerous driving to the deceaseds driving
    habits (e.g. her alleged constant texting while driving) and her familys
    character (e.g. their alleged drinking and drunk driving on the evening of the
    funeral).

[26]

Like
    the motion judge, I see nothing in the posts that could reasonably be said to engage
    broader issues of road safety, the operation of the justice system, or the
    public perception of the conduct of the police.

[27]

The
    appellant submits that the motion judge wrongly concluded that public notoriety
    or controversy could not be equated with public interest for the purposes of s.
    137.1(3). There is no doubt that public notoriety is a kind of public interest.
    However, to the extent that the public interest does not rise above mere
    curiosity or prurient interest, it cannot satisfy the public interest
    requirement in s. 137.1(3):
Grant v.
Torstar Corp.
, at para.
    105. The motion judge appreciated this distinction.

[28]

The
    motion judge properly instructed himself on the law as it relates to the
    meaning of public interest in s. 137.1(3). I see no error in his finding that
    the appellants attempt to shift the blame for the accident to the deceased and
    her family did not constitute expression on a matter relating to the public
    interest. As the appellant had failed to meet his onus under s. 137.1(3), the
    motion judge properly dismissed the motion.

C.

the costs appeal

[29]

The
    motion judge awarded costs on a partial indemnity basis in the amount of
    $8,924.05 to the respondents, the successful parties on the motion. In the
    normal course, the motion judges order would be unremarkable. However, s.
    137.1 motions have their own costs regime. Section 137.1(7) provides that if
    the defendant (moving party) is successful in having the plaintiffs claim dismissed
    on a s. 137.1 motion, the defendant is entitled to its costs of the motion and in
    the proceeding on a full indemnity basis, unless the judge determines that such
    an award would be inappropriate in the circumstances. If the defendant is
    unsuccessful on the s. 137.1 motion, s. 137.1(8) provides:

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

[30]

The
    motion judge ultimately exercised his discretion under s. 137.1(8) in favour of
    the respondents and ordered costs to them, on a partial indemnity basis.

(i)

Should Leave be Granted?

[31]

The
    appellant needs leave to appeal the costs order. The respondents argue that
    leave to appeal should be refused. They contend that this court rarely grants
    leave to appeal costs, and that the motion judges order simply reflects the
    application of the discretion clearly given to him in s. 137.1(8) to the facts
    of this case. The respondents further contend that even if the leave
    application raises a legal question of general importance, leave must be refused
    unless the court is satisfied that there is strong reason to believe that the
    motion judges order is wrong.

[32]

I
    agree with the respondents that leave to appeal costs should be granted
    sparingly. I also agree that this court will seldom interfere with a judges
    exercise of discretion as it relates to costs.

[33]

However,
    I would grant leave to appeal from the costs order in this case. The costs
    provisions in s. 137.1 are quite different from the generally applicable costs
    provisions and have not been considered by this court. I think this court should
    take this opportunity to address those provisions.

(ii)

The
    Merits of the Costs Appeal

[34]

The
    motion judge recognized that s. 137.1(8) applied and that there was a
    presumption that the respondents, even though they had been successful on the
    motion, should not receive their costs: at paras. 11-19. He gave two reasons
    for exercising his discretion in favour of granting costs to the respondents.

[35]

First,
    he held that the respondents could not be criticized for initiating the lawsuit.
    Their lawsuit had none of the features common to the typical SLAPP.
[1]
There was nothing strategic about the lawsuit and the plaintiffs did not set
    out to intimidate the appellant or extract costs from him. The motion judge
    said, at para. 17:

The plaintiffs are not attempting to suppress public
    participation. In the instant case, the plaintiffs are individuals who allege
    damage to their individual reputations. I find no ulterior motive for this
    lawsuit that would take it outside the usual considerations of a defamation
    action for damages.

[36]

Second,
    the motion judge found that the appellants argument that the relevant
    statements in the posts related to matters of public interest had no merit:
    at para. 18.

[37]

The
    motion judge concluded, at para. 19:

In my view, an award of partial indemnity costs is appropriate
    in the circumstances of this case where the defendants claim of public
    interest was found to be without merit and there are no facts that would
    suggest that a costs award would be inequitable.

[38]

The
    motion judges reasons for ordering costs in favour of the respondents are
    consistent with the rationale for the costs provisions in s. 137.1. Those
    sections are designed to encourage defendants, who have been sued over
    expressions on matters of public interest, to bring s. 137.1 motions for an
    early dismissal of those claims. The costs provisions ease the financial burden
    and risk placed on the defendant who seeks an early termination of what it
    claims is a SLAPP:
Accruent LLC v. Mishimagi
, 2016 ONSC 6924, 9 C.P.C.
    (8th) 136,  at para. 4.

[39]

The
    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. In those circumstances, it is not the
    initial lawsuit challenging the expression that represents a potential misuse
    of the litigation process, but rather the s. 137.1 motion. A costs order
    denying a successful respondent its costs on a s. 137.1 motion, even though the
    lawsuit was not brought for an improper motive and the claim did not relate to
    a matter of public interest, could be seen as encouraging defendants to bring
    meritless s. 137.1 motions.

[40]

The
    trial judges findings that the respondents did not bring the lawsuit for any
    improper purpose and that there was no merit to the appellants s. 137.1
    argument were both available on the evidence. Both factors are properly
    considered in exercising the discretion provided in s. 137.1(8). Taken
    together, those factors provided a reasonable basis for the motion judges
    conclusion that a costs award in favour of the respondents was appropriate in
    the circumstances. I would defer to that conclusion.

D.

conclusion

[41]

I
    would dismiss the appeal on the merits, grant leave to appeal costs, and
    dismiss that appeal.

[42]

Counsel
    for the parties agreed on the costs of the appeal. The respondents should have
    their costs on the main appeal fixed in the amount of $6,500. I would make no
    order as to costs on the costs appeal. It is unclear whether the amounts agreed
    upon by counsel include HST and reasonable disbursements. If they do not, those
    amounts should be added to the amounts awarded above.

Released: DD  AUG 30 2018

Doherty J.A.

I agree D.M. Brown
    J.A.

I agree Grant Huscroft
    J.A.





[1]

SLAPP refers to Strategic Lawsuits Against Public
    Participation.


