



COURT OF APPEAL FOR ONTARIO

CITATION: Nanda v. McEwan, 2020 ONCA 431

DATE: 20200702

DOCKET: C67816

Strathy C.J.O., Tulloch and
    Coroza JJ.A.

BETWEEN

Irwin Nanda

Plaintiff (Respondent)

and

Derrick McEwan, Avelino
    Carvalho, Angela Mason
and Satish Sharma

Defendants (Appellants)

Kevin J. Scullion, for the appellants

Ivanna Iwasykiw, for the respondent

Heard: In writing

Appeal from the order of Justice Leonard
    Ricchetti of the Superior Court of Justice, dated January 7, 2019, with reasons
    reported at 2019 ONSC 3357.

Strathy C.J.O.:


A.

Introduction

[1]

This is an appeal from an order made under s.
    137.1 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43 (
CJA
),
    dismissing an anti-SLAPP motion brought by the appellants.
[1]
The action is for defamation,
    based on statements made by the appellants in the midst of the respondents
    unsuccessful campaign for election as president of the Toronto Local of the
    Canadian Union of Postal Workers (CUPW).

[2]

The motion judge dismissed the appellants
    motion to dismiss the action, holding that they had not established that the
    statements at issue related to a matter of public interest, as required by s.
    137.1(3). Although it was not necessary to consider whether the respondents
    claim met the requirements of s. 137.1(4), the motion judge undertook the public
    interest balancing assessment in s. 137.1(4)(b) and found that the public
    interest did not weigh in favour of the protection of the statements. He therefore
    dismissed the appellants motion.

[3]

For the reasons that follow, I would dismiss the
    appeal. I reach this result through a different course of reasoning than the
    motion judge. In my respectful view, the motion judge erred in his analysis
    under s. 137.1(3). The proper application of that section, as explained in
1704604
    Ontario Ltd. v. Pointes Protection Association
, 2018 ONCA 685, 142 O.R.
    (3d) 161
[2]
,
    leads to a conclusion that the expressions relate to a matter of public
    interest.

[4]

However, conducting the additional analysis
    required by s. 137.1(4), I come to the same result as the motion judge: having
    regard to the merits of the proceeding and the harm likely to have been
    suffered by the respondent, the public interest in permitting the proceeding to
    continue outweighs the public interest in protecting the expressions at issue.

B.

Factual Background and Procedural History

[5]

The appellants are members of the Toronto Local
    of CUPW. The respondent had been involved in a leadership capacity in the Toronto
    Local of CUPW from 1990 to 2011, then as a member of the executive of the
    Ontario Federation of Labour from 2011 to 2016. In 2016, he resumed involvement
    in CUPW activities and ran in the 2017 election for President of the Toronto
    Local. The appellants opposed his candidacy.

[6]

The respondent alleged that during the election
    campaign, the appellants made defamatory statements about him in two invitation-only
    WhatsApp chat groups and in posters or flyers that were distributed to
    members of the local during the election. The first WhatsApp group had 183
    members and the second had 100, with some overlap in membership. The statements
    included allegations that the respondent:

·

was a racist, a bigot, a sexist, a bully and a
    thief;

·

was corrupt;

·

had rigged a union election;

·

had stolen from membership and had abused his
    position of trust;

·

had used union funds to buy votes; and

·

had engaged in a criminal conspiracy.

[7]

The respondent commenced an action in the Small
    Claims Court, a branch of the Superior Court of Justice. The appellants
    statement of defence did not dispute that the statements were made but argued
    that they were not defamatory and raised several defences, including
    justification, absolute and/or qualified privilege, fair comment, and public
    interest communication.

[8]

The appellants moved before a deputy judge of
    the Small Claims Court to dismiss the action on three grounds: first, that the
    proceeding was properly the subject of arbitration under the union
    constitution; second, that the respondent had failed to give notice under the
Libel
    and Slander Act
; R.S.O. 1990, c L.12; and third, that the action
    improperly limited public debate under s. 137.1 of the
CJA
. The deputy
    judge stayed the action as a result of the respondents failure to give notice
    of his claim. He did not consider it necessary to deal with the anti-SLAPP
    motion.

[9]

The respondent appealed that order to a single
    judge of the Divisional Court. The appellants cross-appealed on the arbitration
    and anti-SLAPP issues. The Divisional Court judge allowed the appeal,
    concluding that there was no evidence before the deputy judge to permit a
    conclusion that the WhatsApp statements constituted a broadcast under the
Libel
    and Slander Act
. He dismissed the cross-appeal with respect to the
    arbitration issue.

[10]

The appellants indicated that they wished to pursue the anti-SLAPP
    motion. Rather than remitting the motion to the deputy judge, the Divisional
    Court judge (hereinafter the motion judge) agreed to deal with the matter
    himself. The parties agreed that he could address the matter through written
    submissions.

[11]

The motion judge dismissed the anti-SLAPP motion. He concluded that
    the impugned expressions were not related to a matter of public interest, and
    even if they were, the public interest did not weigh in favour of protecting
    such expressions.

[12]

Subsequent to the motion judges decision, this court held in
Bruyea
    v. Canada (Veteran Affairs)
, 2019 ONCA 599, 147 O.R. (3d) 84, that a deputy
    judge of the Small Claims Court has no jurisdiction to make an order under s.
    137.1, as that jurisdiction rests with a judge, meaning a Superior Court
    judge.

[13]

The appellants filed a motion for leave to appeal to this court. The
    panel that heard the motion directed that leave is not required as an appeal
    lies to this court under s. 6(1)(d) of the
CJA
, which provides for an
    appeal as of right from an order under s. 137.1.

C.

The Motion Judges Reasons

[14]

The motion judge found that the appellants did not meet the
    threshold test under s. 137.1(3) of establishing that the expressions at issue related
    to the public interest. The purpose and context of the statements at issue were
    to make disparaging, inflammatory and allegedly defamatory comments about the
    Plaintiff to other local union members to get those other members not to vote
    for the Plaintiff. Although some 200 members of the local saw the WhatsApp messages,
    they were not members of the general public or a segment of it. Therefore,
    neither the public nor a segment of the public had an interest in the
    expression.

[15]

The motion judge found that the election of a local union official
    is not a matter of public interest. He reasoned that local union elections are
    private matters, unlike the election of public officials, such as municipal
    councillors. Elections that take place in private institutions, such as
    churches, private companies, community and charitable organizations, and law
    firms, are not of public interest, as they involve highly local, limited and
    private interests.

[16]

The motion judge suggested that the public interest may arise by
    virtue of: (a) the appointment/election of persons in public positions; and
    also (b) the appointment/election of those that engage in public interest
    issues, such as environment, planning, and the arts. However, he appears to
    have found neither category to be at play.

[17]

As his conclusion on the threshold test was dispositive of the
    motion, the motion judge did not consider the merits of the proceeding or the
    defences available under s. 137.1(4)(a). He did, however, comment on the public
    interest balancing under s. 137.1(4)(b). He found that the statements at issue
    were not worthy of protection because they did not encourage debate on public
    matters. They were vulgar and vitriolic statements meant to denigrate and
    defame the character of the Plaintiff to sway other voters not to vote for the
    Plaintiff, referring to
Levant v. Day
, 2019 ONCA 244, 145 O.R. (3d)
    442, at paras. 22-23, leave to appeal refused, [2019] S.C.C.A. No. 194.

D.

Issues

[18]

The appellants grounds of appeal can be summarized as follows:

1)

the motion judge erred in determining that the expression did not
    relate to the public interest under s. 137.1(3);

2)

the motion judge erred in opining on public interest balancing under
    s. 137.1(4)(b), as his determination under s. 137.1(3) was dispositive; and

3)

the motion judge erred in improperly determining the minimum
    threshold for protected political speech in his s. 137.1(4)(b) analysis,
    holding that political attack ads are never protected forms of speech.

E.

The Parties Submissions

(1)

Appellants

[19]

First, the appellants submit that the motion judge erred in finding
    that unions are private institutions and that the election of a local union
    President is a private matter and not a matter of public interest. He
    improperly focused on a small number of members of the local (approximately
    200) and should have considered whether the union has the ability to affect
    public policy through government lobbying and advocacy on behalf of workers. They
    submit that the government/non-government distinction conflicts with binding
    authority of this court:
United Soils Management Ltd. v. Mohammed
,
    2019 ONCA 128, 53 C.C.L.T. (4th) 1, leave to appeal refused, [2019] S.C.C.A.
    No. 153.

[20]

Second, the appellants submit that once the motion judge found that
    the expressions did not relate to a matter of public interest under s.
    137.1(3), he should have refrained from characterizing the expressions or
    determining whether they were deserving of protection under s. 137.1(4)(b). In
    proceeding to do so, he improperly interfered with the trial judges
    jurisdiction and impaired the appellants ability to raise defences on the
    merits.

[21]

Third, the appellants submit that the motion judge improperly
    determined the minimum threshold of protection for political speech, in essence
    holding that all political attack ads are not protected forms of speech.

(2)

Respondent

[22]

First, the respondent submits that the motion judge correctly
    determined that the purpose of an organization should be examined to determine
    whether its elections are matters of public importance. The motion judge did
    not treat the number of members as a determinative factor; he was simply noting
    that the number of interested parties was limited to the members of the
    collective bargaining unit.

[23]

Second, the respondent submits that the additional comments on
    public interest balancing under s. 137.1(4)(b) were merely
obiter dicta
and would not restrict the ability of the trial judge to decide the matter on
    the evidence.

[24]

Third, because the comments under s. 137.1(4)(b) were
obiter
    dicta
, they do not represent a determination of the minimum threshold for
    protected political speech. In the alternative, the respondent submits that the
    motion judge properly determined that bald attacks are not protected under the
    public interest balancing test.

F.

Analysis

(1)

Section 137.1 of the
CJA
 The Anti-SLAPP Provision

(a)

Purpose

[25]

Section 137.1 of the
CJA
is designed to prevent the legal
    process from being used as a weapon to limit debate on matters of public
    interest. Section 137.1(1) explains that its purpose is:

(a) to encourage individuals to express
    themselves on matters of public interest;

(b) to promote broad participation in debates
    on matters of public interest;

(c) to discourage the use of litigation as a
    means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that participation by
    the public in debates on matters of public interest will be hampered by fear of
    legal action.

[26]

In
Pointes
, the seminal case on the interpretation of s.
    137.1, Doherty J.A. provided the following summary of the operation of the
    legislation, at para. 7:

s. 137.1 allows a defendant to move any time
    after a claim is commenced for an order dismissing the 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).

(b)

Section 137.1(3): The Threshold Requirement

[27]

Section 137.1(3) sets out what was described in
Pointes
as
    a threshold requirement:

On motion by a person against whom a
    proceeding is brought, 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.

[28]

This provision requires the moving party to establish, on a balance
    of probabilities, that the expression relates to a matter of public interest.
    This term is to be given a broad reading and does not require that the
    expression actually further the public interest. It covers language that is
    intemperate, false, or even contrary to the public interest:
Pointes
,
    at para. 55.

(c)

Section 137.1(4): The Merits-Based and Public
    Interest Hurdles

[29]

If the defendant establishes that the expression relates to a matter
    of public interest, s. 137.1(4) comes into play and the onus shifts to the
    plaintiff. It provides:

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

(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.

[30]

First, to satisfy s. 137.1(4)(a), the merits-based hurdle, the
    plaintiff must establish, on a balance of probabilities, that the proceeding
    has substantial merit and that the defendant has no valid defence.

[31]

Second, to surmount s. 137.1(4)(b), the public interest hurdle, the
    plaintiff must show that the harm suffered by the plaintiff as a result of the
    defendants expression is sufficiently serious that the public interest in
    permitting the proceeding to continue outweighs the public interest in
    protecting that expression.

[32]

I will discuss the application of s. 137.1 in more detail below.

(2)

Standard of Review

[33]

The standard of review for determinations under ss. 137.1(3) and
    137.1(4) is deference, absent legal error or palpable and overriding factual
    error: see
Pointes
, at paras. 66, 97.

(3)

Analysis

(a)

Section
    137.1(3): The Threshold Requirement

[34]

The motion judge correctly identified
Pointes
as the dispositive
    authority. In my respectful view, however, he mischaracterized the context of
    the expressions at issue, defined the segment of the community too narrowly,
    and drew an unwarranted distinction between expressions made in the context of
    private and public organizations.

[35]

Pointes
and subsequent decisions of
    this court have referred to
Grant v. Torstar Corp.
, 2009 SCC 61,
    [2009] 3 S.C.R. 640 for guidance in the analysis of the public interest
    requirement. The following considerations may be relevant:

·

the context of the expression, having regard to
    the communication as a whole:
Pointes
, at para. 60;

·

expressions that relate to private matters do
    not become matters relating to the public interest merely because the public is
    curious about them:
Pointes
, at para. 61;

·

[a]n expression can relate to a matter of
    public interest without engaging the interest of the entire community, or even
    a substantial part of the community. It is enough that some segment of the
    community would have a genuine interest in the subject matter of the
    expression:
Pointes
, at para. 62;

·

public interest does not turn on the size of the
    audience:
Pointes
, at para. 63; and

·

the concept of public interest is a broad one
    that does not take into account the merits or manner of expression, nor the
    motive of the author. It covers language that is intemperate, false, and even
    contrary to the public interest:
Pointes
, at paras. 55, 65.

[36]

In
Pointes
, at para. 54, Doherty J.A. suggested that the public
    interest can be determined by asking: what is the expression about, or what
    does it pertain to?

[37]

In identifying the purpose and context of the expressions as making disparaging,
    inflammatory and allegedly defamatory comments about the Plaintiff to other
    local union members to get those other members not to vote for the Plaintiff, the
    motion judge focused on the manner of expression and the motives of the
    appellants. This runs contrary to the observations of Doherty J.A. in
Pointes
,
    at para. 65, that the analysis does not consider the motives of the author or
    the merits of the expression. The motion judge made the error that this court
    identified in
Levant
, at para. 11.

[38]

The motion judge also defined the group interested in the
    expressions too narrowly. Specifically, he said that [t]he expression may be
    of interest to the approximately 200 members of the local union, but NOT the
    public generally or a segment of the public. First, as Doherty J.A. noted in
Pointes
,
    at para. 63, the public interest does not turn on the size of the audience. Second,
    the public interest extended well beyond those who were direct recipients of
    the texts and the posters. It would have included other members of CUPW, as
    well as the public sector more generally.

[39]

Finally, even if one were to accept that a local of a major Canadian
    public union is a private organization, the distinction between expressions
    made in the context of private and public organizations is not found in
Pointes
.

[40]

Had the motion judge properly addressed the question, what is the
    expression about?, he would have responded that it was about allegations of
    corruption and misconduct by a candidate for the office of President of the
    Toronto Local of the Canadian Union of Postal Workers.

[41]

In my view, expressions concerning racism, sexism, corruption, abuse
    of union funds, and misconduct by a candidate for President of the Toronto Local
    of a Canadian public sector union relate to a matter of public interest. In the
    words of McLachlin C.J.C. in
Torstar
, at para. 102, [i]t is enough
    that some segment of the community would have a genuine interest in receiving information
    on the subject: see also
Torstar
, at para. 105. Members of the
    Toronto Local, beyond the recipients of the posters and WhatsApp messages, would
    clearly have a genuine interest in the expressions in the context of an
    election campaign. But the scope of public interest would extend even further, to
    the broader community served by members of CUPW and the public sector.

[42]

It is of note that two of the decisions released contemporaneously
    with
Pointes
deal with expressions made in the context of elections.
    In
Armstrong v. Corus Entertainment Inc.
, 2018 ONCA 689, 143 O.R. (3d)
    54, the plaintiff and one of the defendants, Nancy McSloy, were candidates for
    a position as city councillor in the municipal election in London, Ontario.
    During the campaign, Ms. McSloy made comments in a press release and on a talk
    radio broadcast, the gist of which were that Mr. Armstrong had used threats,
    intimidation, illegal acts, and bullying to get what he wanted from others. On
    the motion under s. 137.1, the motion judge held that the defendants had
    satisfied him that the subject matter of the claims related to a matter of
    public interest under s. 137.1(3). Doherty J.A. observed, [t]hat finding is
    not in dispute on the appeal. Nor should it be. Statements about a candidates
    fitness for office made in the course of an ongoing election campaign
    undoubtedly qualify as expression relating to a matter of public interest.

[43]

In
Able Translations Ltd. v. Express International Translations
    Inc.
, 2018 ONCA 690, 428 D.L.R. (4th) 568, the expressions at issue were
    made in the course of a federal election campaign and related to the
    suitability of a candidate to sit as a member of Parliament, given his prior
    senior management position with the plaintiff corporation. In affirming the
    motion judges conclusion that the communications related to a matter of public
    interest, Doherty J.A. observed, at para. 19, [n]o one disputes that
    communications directed at a persons suitability to hold elected office,
    particularly when made in the middle of an election campaign, are
    communications relating to a matter of public interest.

[44]

Subsequently, in
Labourers International Union of North
    America, Local 183 v. Castellano
, 2020 ONCA 71, 444 D.L.R. (4th) 183, this
    court affirmed a motion judges decision to dismiss an anti-SLAPP motion and to
    grant summary judgment in favour of the plaintiff for defamation. The
    defendant, a former member of the plaintiff local, had made internet posts in
    which he described the union as, among other things, terrible, corrupt,
    despicable, evil, no good degenerate scum, a vicious pit of snakes and
    as having a bad reputation for corrupt and deceitful behaviour. He described
    the unions counsel and other members and officers in similar terms.

[45]

Referring to
Pointes
, the motion judge in
Castellano
noted that the fact that the defendants posts contained derogatory, malicious,
    and false statements did not preclude a finding that the expressions related to
    a matter of public interest. Looking at the broader context of the expressions,
    other statements made by the defendant were concerned with the quality of
    representation he felt he was being provided by the union. The motion judge
    found this was a matter of public interest, at para. 40:

While the posts may be understood as the
    public airing of very personal grievances, they may also be construed as
    addressing the Unions governance and the suitability of some of the plaintiffs
    to act as union representatives I accept Mr. Castellanos submission that this
    characterization of the expression has significance for members of Local 183 as
    well as the community at large. This is sufficient to ground a finding that Mr.
    Castellano has met his onus under s. 137.1(3).

[46]

The motion judge went on to dismiss Mr. Castellanos anti-SLAPP
    motion, finding that the public interest in the expressions was low and that
    the harm suffered by the plaintiffs outweighed the public interest in
    protecting the defendants expression. This court dismissed an appeal from that
    portion of the judgment.

[47]

In summary, the motion judge erred in this case by focusing on the
    nature of the expressions and failing to consider their context, in defining the
    group interested in the expressions too narrowly, and in treating the private
    context as determinative. In my view, allegations of racism, sexism, corruption,
    and misconduct in the context of the election of the President of a major local
    of an important public sector union is a matter of public interest. The appellants
    motion passed the public interest threshold. This requires this court to
    conduct the additional analysis under s. 137.1(4).

(b)

Section 137.1(4)(a): The Merits-Based Hurdle

[48]

In
Platnick v. Bent
, 2018 ONCA 687, 426 D.L.R. (4th) 60
[3]
, one of the companion cases to
Pointes
, Doherty J.A. summarized the requirements of s. 137.1(4)(a),
    at para. 43:

s. 137.1(4)(a) puts the onus on the plaintiff
    (responding party) to establish on the balance of probabilities that there are
    reasonable grounds to believe both that the plaintiff's claim has substantial
    merit and that the defendant (moving party) has no valid defence. Broadly
    speaking, the section provides a mechanism whereby claims that have little
    apparent merit and that potentially undermine freedom of expression can be
    screened out of the litigation process at an early stage.

[49]

Applying that analysis, the question raised by s. 137.1(4)(a)
    becomes:

Could a reasonable trier conclude that [Mr.
    Nanda] had a real chance of establishing that he was libelled and could a
    reasonable trier conclude that [the defendants] had no valid defence to the
    allegation?

[50]

In the court below, the appellants made no submission on the merits
    of the respondents defamation claim, but they submitted that they were
    entitled to the defences of justification, fair comment, absolute and/or qualified
    privilege, and public interest communication. In this court, their submissions
    on s. 137.1(4) are primarily that the motion judge erred in making
obiter
statements that could bind a trial judge.

[51]

Only one of the appellants, Mr. Sharma, filed an affidavit on the
    motion. It contains nothing to support any defence to the most serious
    defamatory statements. It states that the respondent was regarded by some
    members as a polarizing figure in the CUPW Toronto Local, with members holding
    the opinion that he was acting in an obstructive, intimidating manner, skirting
    the Rules of Order and proposing motions which could have angered the
    membership. It attaches a photograph of a meeting of the Toronto Local,
    purporting to show that the respondent divided the membership on ethnic lines. It
    refers to another website containing allegations of corruption against the
    respondent. Nowhere do the appellants materials demonstrate defences to the
    defamatory statements concerning corruption, rigging elections, abuse of trust,
    and conspiracy.

[52]

In my view, the respondents claim survives the merits-based hurdle.
    The defamation claim is supported by the evidence adduced by the respondent and
    the appellants pleading, and the evidence does not reveal a defence to the
    respondents serious complaints. A conclusion such as this does not bind the
    trial judge, who will consider the merits and defences on a full record.

(c)

Section 137.1(4)(b): The Public Interest Hurdle

[53]

I turn to the second hurdle. Section 137.1(4)(b), set out above, calls
    for the balancing of the public interest in permitting a proceeding to continue
    against the public interest in the protection of expression on matters of
    public interest.

[54]

At this stage, the plaintiff has a burden to establish evidence of
    harm, which may be in the form of damage to monetary, reputational, and/or
    privacy interests:
Pointes
, at paras. 87-88. The plaintiff must demonstrate
    that there was a causal connection between the defendants expression and the
    harm suffered:
Pointes
, at paras. 90-92. The motion judge must also
    assess the public interest in protecting the actual expression that is the
    subject of the lawsuit.

[55]

In
Platnick
, at para. 98, Doherty J.A. suggested that,
    while acknowledging that s. 137.1 does not apply
only
to litigation that meets the criteria of a SLAPP, it may be appropriate to
    begin the s. 137.1(4)(b) analysis by asking, [d]oes this claim have the
    hallmarks of a classic SLAPP? These may include such matters as: a history of
    the plaintiff using litigation or the threat of litigation to silence critics; a
    financial or power imbalance that strongly favours the plaintiff; a punitive or
    retributory purpose animating the plaintiff bringing the claim; and minimal or
    nominal damages suffered by the plaintiff:
Platnick
, at para. 99.

[56]

This is hardly a classic SLAPP. None of the indicia identified by
    Doherty J.A. are present. While the respondent seeks damages of only $25,000,
    he has adduced some evidence of an income loss related to the loss of the election
    for the office of President, and the damages claimed are realistic.

[57]

I agree with the motion judges conclusion on this issue. Having
    regard to the expressions at issue, the merits of the respondents case, and
    giving due regard to the public interest in public debate and expression in the
    context of a union election, the public interest in permitting the action to
    proceed must prevail.

(d)

The Motion Judges Decision was Fact Specific

[58]

I reject the appellants submission that the motion judge erred by
    determining the minimum protection threshold for protected political speech
    and by holding that attack ads are not protected speech. The appellants focus
    on the motion judges observations, at paras. 46 and 47, where he observed, in
    relation to the statements at issue:

These types of Statements do not encourage
    debate on public matters but are allegedly defamatory statements made for the
    sole purpose of attacking and maligning the character of an individual without
    a meaningful connection with the alleged public interest or to encourage debate
    on matters of public interest.

Put another way, the statements by the
    Defendants in this case, appear to be vulgar and vitriolic statements meant to
    denigrate and defame the character of the Plaintiff to sway other voters not to
    vote for the Plaintiff. These statements were not intended to provide
    information or the exchange of opinion, assert facts into the public debate
    (even if it were a matter of public interest) or to engage in a discussion of a
    persons qualifications for office. A key example is the statement that the
    Plaintiff engaged in criminal conduct.

[59]

Shortly after making these statements, the motion judge quoted from
    this courts decision in
Levant
, at paras. 22-32, citing to
Pointes
,
    at para. 94, that deliberate falsehoods, gratuitous personal attacks or vulgar
    and offensive language may reduce the public interest in protecting that
    speech, compared to cases where the message is delivered without the lies,
    vitriol, and obscenities.

[60]

As the appellants note, the motion judges observations on this
    aspect of the issue were
obiter
. In my view, they are nothing more
    than an application of the particular facts of this case to the relevant legal
    test. Specifically, the motion judge was applying the guidance in
Pointes
that, in conducting the balancing exercise under s. 137.1(4)(b), the quality of
    the expressions and the motivation of the speaker are relevant to the measure
    of public interest in protecting the expression.

G.

Disposition

[61]

For the foregoing reasons, I would dismiss the appeal. There were no
    submissions as to costs. If no agreement is reached, the parties shall submit
    written submissions. The appellants shall deliver their submissions to the
    Registrar of the court within 30 days from the release of these reasons and the
    respondent shall have 15 days to respond. The submissions are limited to 10
    pages, exclusive of costs outlines.

Released: GRS   JUL 02 2020

George R. Strathy C.J.O.

I agree. M. Tulloch J.A.

I agree. S. Coroza J.A.





[1]
SLAPP means Strategic Litigation Against Public Participation.



[2]
leave to appeal granted and appeal heard and reserved November 12,
    2019, [2018] S.C.C.A. No. 467.



[3]
leave to appeal granted and appeal heard and reserved November 12,
    2019, [2018] S.C.C.A. No. 466.


