CITATION: Volpe v.

Wong-Tam, 2022 ONSC 3106

COURT FILE NO.: CV-21-00660297-0000
DATE: 20220526

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JOSEPH VOLPE and M.T.E.C. CONSULTANTS LTD., Plaintiffs

AND:

KRISTYN WONG-TAM, PAUL AINSLIE, YAHOO MEDIA GROUP INC.,

ELIZABETH DI FILIPPO, FRESHDAILY INC., MEDIA CENTRAL
CORPORATION INC., ENZO DIMATTEO, MARIA RIZZO, NORM DI
PASQUALE, MARKUS DE DOMENICO and IDA LI PRETI, Defendants

BEFORE: Justice Glustein

COUNSEL: Paul Slansky, for the plaintiffs

Kevin McGivney and Natalie D. Kolos, for the defendants Kristyn Wong-Tam and
Paul Ainslie

Jeremy Opolsky, Ryan Lax and Adrienne Oake, for the defendant Maria Rizzo

Tim Gleason and Amani Rauff, for the defendant Ida Li Preti

Iain A.C. MacKinnon, for the defendants Norman Di Pasquale and Markus De
Domenico

Andrew W. MacDonald and Emma K. Romano, for the defendants Yahoo Canada
Corp. and Elizabeth Di Filippo

HEARD: April 20 and 21, 2022

REASONS FOR DECISION

Nature of motion and overview

[1] There are five motions before the court, brought by (i) the defendants Kristyn Wong-Tam
(Wong-Tam) and Paul Ainslie (Ainslie), (ii) the defendant Maria Rizzo (Rizzo), (iii) the
defendant Ida Li Preti (Li Preti), (iv) the defendants Norman Di Pasquale (Di Pasquale) and
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Markus de Domenico (de Domenico), and (v) the defendants Yahoo Canada Corp. (Yahoo
Canada)1 and Elizabeth Di Filippo (Di Filippo), collectively referred to as the Yahoo Defendants.

[2] In each of those motions, the defendants ask the court, under s. 137.1 of the Courts of
Justice Act, R.S.O. 1990, c. C.43, to dismiss the present defamation action (the Action) brought
by the plaintiffs, Joseph Volpe (Volpe) and M.T.E.C. Consultants Ltd., which operates as
Corriere Canadese (Corriere), an Italian-Canadian newspaper.

[3] The defendants submit that the Action is a strategic lawsuit against public participation
(“SLAPP”). The s. 137.1 motion is commonly referred to as an “anti-SLAPP” motion.

[4] The defendants Wong-Tam and Ainslie are elected councillors representing Wards 13
and 24 respectively of the City of Toronto (the City).

[5] The defendants Rizzo, Di Pasquale, de Domenico, and Li Preti, are elected trustees of the
Toronto Catholic District School Board (TCDSB) representing Wards 5, 9, 2, and 3 respectively
of the City.

[6] The defendant Yahoo Canada operates a website (the Yahoo Website) where it publishes
news, finance, sports, style and entertainment content by its own staff, freelancers, and third-
party content providers. Di Filippo is a journalist employed by Yahoo Canada as a Lifestyle
Editor.

[7] In a series of 28 articles written by Volpe over a 12 week period between October 17,
2020, and January 8, 2021, and published in Corriere (the Initial Articles), Volpe strongly
opposed various positions taken by the defendant trustees with respect to issues affecting the
LGBTQ2S+ community in the TCDSB. In those articles, Volpe labelled the defendant trustees as
“virtue-signalling thugs”, a “rat pack”, “terrorists”, and “buffoons”.

[8] In the Initial Articles, Volpe made numerous comments about the LGBTQ2S+
community, including the following:

(i) “(the LGBTQ2+)2 have taken aim to tear the [public Catholic school]3 system
down”;

1
(incorrectly named in the claim as Yahoo Media Group Inc.)

2
Words in round parentheses appeared in that format in the articles.
3
Words in square parentheses reflect the meaning of certain words in the articles taken from the context of the
statement or are used for grammatical purposes.
 - Page 3 -

(ii) “(the LGBTQ2+)” are “militant radical, self-proclaimed advocates of ‘non-

religious’ value structure” who engage in “tactics [which] are insidious, malicious
and designed to tar and feather anyone who does not agree with them”;

(iii) “(the LGBTQ2+)” have “seized control of due process to dictate an agenda no
self-respecting adult would foist on any child”, with that agenda having been put
forth by “former Premier Kathleen Wynne (an openly lesbian politician who left
her male husband for another woman) to implement. That’s her business”;

(iv) Volpe’s heterosexual “standards of sexual propriety” provide “yet another

safeguard against predators who would victimize” Volpe’s children;

(v) “… the LBGQT2+ lobby [is] probably the most intolerant organization around”;
and

(vi) “radical activists from the LGBTQ2+ community have launched what can only be
described as an all-out witch hunt to eradicate the Catholic ethic from Ontario’s
School system”.

[9] On January 8, 2021, Volpe published an article (the YouthLine Article) in which he
criticized the defendant trustees for their support of a link on the TCDSB website to the Lesbian
Gay Bi Trans Youth Line (LGBT YouthLine) website, operated by a youth-led, non-profit
organization that provides resources, anonymous peer support and referrals to LGBTQ2S+
youth.

[10] In the YouthLine Article, Volpe made the following comments:

(i) “[LGBT YouthLine] is a recruitment site operated by a self-professed LGBTQ+

umbrella organization to attract children that operates province wide”;

(ii) supporters of LGBT YouthLine are “urban social terrorists [who] tear apart the
Catholic educational system with wild accusations and smear campaigns to
distract from the obvious”;

(iii) “anyone ‘trolling’ that [LGBT YouthLine] website should be considered a

pedophile”; and

(iv) LGBT YouthLine, and the trustees who supported it, were engaged in “insidious
and odious” conduct and were “someone, or some structure, that feigns the
interest of the most vulnerable – our children – then exposes their innocence to
exploitation by others”.

[11] On the same day as the YouthLine Article was published, the TCDSB removed the
LGBT YouthLine link from its website. After criticism of that decision by both LGBT
YouthLine and social media, and media reports including an article published on the Yahoo
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Website on January 12, 2021 (the Yahoo Article), the TCDSB reversed its decision and
reinstated the link to the LGBT YouthLine website on January 13, 2021.

[12] Following the YouthLine Article, the defendant councillors and trustees responded, by

(i) three tweets from Wong-Tam dated January 11, 2021, and a tweet from Wong-
Tam dated January 14, 2021 (collectively, the Tweets),

(ii) a proposed motion on January 28, 2021, by Wong-Tam and seconded by Ainslie
(the Motion), which proposed that the City cease all paid advertisements in
Corriere and require Corriere to comply with the City’s Human Rights and Anti-
Harassment/Discrimination Policy (HRAP) and sign a “Declaration of
Compliance with Anti-Harassment/Discrimination Legislation & all other related
City policies” (the Declaration),

(iii) a joint letter written by the defendant trustees on February 1, 2021, addressed to
Mayor Tory and City Council, expressing support for the Motion (the Joint
Letter), and

(iv) statements made by Wong-Tam, Ainslie, Rizzo, and Di Pasquale at a YouTube

virtual press conference held on March 9, 2021, in support of the Motion (the
Press Conference Statements).

[13] In the above statements, the councillor and trustee defendants strongly disagreed with the
statements of Volpe in the Initial and YouthLine Articles. The defendants forcefully advocated in
support of their view that the LGBT YouthLine link was a vital resource for LGBTQ2S+
students at the TCDSB, and that the Motion was appropriate because, in their opinion, public
taxpayer funds should not be used to support newspapers which expressed the views in the Initial
and YouthLine Articles.

[14] During the course of the comments, the councillor and trustee defendants stated their
view that Volpe and Corriere were homophobic, transphobic, and anti-LGBTQ2S+.

[15] In the Yahoo Article, Di Filippo stated that Volpe had “well documented anti-LGBTQ+
views”.

[16] I refer to the impugned statements in the Tweets, Motion, Joint Letter, Press Conference
Statements, and Yahoo Article as the “Impugned Statements”.

[17] The plaintiffs then brought the Action, issuing a statement of claim on March 5, 2021,
and a “Superseding Statement of Claim” on April 12, 2021, seeking more than $30 million in
damages. The moving party defendants have brought the present motions to dismiss the Action
as a SLAPP action.

[18] For the reasons that follow, I grant the motions and dismiss the Action. I find that:
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(i) The defendants have met the threshold under s. 137.1(3) to establish that the
proceeding arises from an expression that relates to a matter of public interest,
which includes (i) the decision of the TCDSB to remove and reinstate the LGBT
YouthLine link, (ii) the issue of whether public taxpayer funds should be used for
advertisements in media which expressed the views in the Initial and YouthLine
Articles, and (iii) the responsibilities of the trustees and councillors to represent
their constituents (including LGBTQ2S+ students, parents, and teachers) and
ensure an inclusive and safe school environment;

(ii) The plaintiffs have established under s. 137.1(4)(a)(i) that there are grounds to
believe (i.e., the legal and evidentiary analysis on the motion weighs in favour of
the plaintiffs) that the defamation claim has substantial merit. Expressing the view
that a plaintiff is homophobic, transphobic, or anti-LGBTQ2S+ would tend to
lower the plaintiff’s reputation in the eyes of a reasonable person.

However, the plaintiffs have not established under s. 137.1(4)(a)(i) any grounds to
believe that the remaining causes of action (misfeasance in public office, inducing
breach of contract, or wrongful interference with economic relations) have any
substantial merit. There is no evidence to find any bad faith, excess of powers,
intention to cause a breach of contract, or an unlawful act. Consequently, the
plaintiffs have failed to demonstrate that it weighs in their favour that the other
claims are valid;

(iii) The plaintiffs have failed to establish under s. 137.1(4)(a)(ii) that there are
grounds to believe that (a) the defence of fair comment raised by all defendants or
(b) the defences raised by particular defendants of qualified privilege,
justification, statutory immunity under s. 391 of the City of Toronto Act, 2006,
S.O. 2006, c. 11, Sched. A (the CTA), and responsible communication are not
valid defences.

While the court on an anti-SLAPP motion does not assess the full merits of a
defence as at trial, the plaintiffs have failed to demonstrate that it weighs in their
favour that none of those defences are valid. In brief:

(a) Fair comment: The views expressed by all of the defendants were
recognizable as comment on a matter of public interest and had a
basis in fact arising from the Initial and YouthLine Articles. The
comments were those that any person could honestly make and there
is no evidence of malice;

(b) Qualified privilege: The statements made by the defendant trustees

and councillors were in the context of their duty to advise their
constituents and the City about compliance with the HRAP, and the
City electorate had a duty to receive such information;
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(c) Justification: If the defamatory statements were held to be facts

(which I do not find), then the statements in the Initial and
YouthLine Articles support a finding that the plaintiffs are
homophobic, transphobic, and anti-LGBTQ2S+;

(d) Section 391 of the CTA provides immunity to councillors for acts
done in good faith in the course of their duties, which can be met on
the evidence;

(e) Responsible communication: The Yahoo Defendants reported on a

matter of public interest, and were diligent in trying to verify the
allegation; and

(iv) The plaintiffs have not established under s. 137.1(4)(b), on the balance of
probabilities, that the harm suffered from the Impugned Statements is
“sufficiently serious” that the public interest in permitting the proceeding to
continue outweighs the public interest in protecting the defendants’ expression.
There is little or no evidence of harm, weighed against the importance of the
defendants’ expression seeking to ensure LGBTQ2S+ inclusion in the TCDSB,
the use of public taxpayer funds for City advertising, and the safety of
LGBTQ2S+ students in the TCDSB, particularly in the context of the public
debate in which the plaintiffs were engaged.

Facts

The parties

[19] M.T.E.C. Consultants Ltd. carries on business as Corriere, an Italian and English daily
newspaper that publishes a hard copy and online.

[20] Volpe is the President and Publisher of Corriere, and regularly writes articles for the
newspaper. He is a former politician, as a member of Parliament from 1998 to 2011, and a
cabinet minister from December 2003 to February 2006.

[21] Wong-Tam is the City councillor representing Ward 13, first elected in 2010.

[22] Ainslie is the City councillor representing Ward 24, first elected in 2006.

[23] Rizzo is the TCDSB trustee representing Ward 5, first elected in 2003.

[24] Di Pasquale is the TCDSB trustee representing Ward 9 since October 2018.

[25] De Domenico is the TCDSB trustee representing Ward 2 since October 2018.

[26] Li Preti is the TCDSB trustee representing Ward 3 since October 2018.
 - Page 7 -

[27] Yahoo Canada operates the Yahoo Website where it publishes news, finance, sports,
style, and entertainment content by its own staff, freelancers, and third-party content providers.

[28] Di Filippo is a journalist employed by Yahoo Canada as a Lifestyle Editor. Her role
includes writing and editing content for the Yahoo Website.

Statutory and other responsibilities of councillors and trustees

(i) Councillors

[29] Section 131 of the CTA provides:

It is the role of city council,

(a) to represent the public and to consider the well-being and interests
of the City;

(b) to develop and evaluate the policies and programs of the City;

(c) to determine which services the City provides;

(d) to ensure that administrative policies, practices and procedures and

controllership policies, practices and procedures are in place to
implement the decisions of council;

(e) to ensure the accountability and transparency of the operations of

the City, including the activities of the senior management of the
City;

(f) to maintain the financial integrity of the City; and

(g) to carry out the duties of council under this or any other Act.

[30] On October 2, 2019, the City approved the HRAP, which states, “[t]he City of Toronto
will not tolerate, ignore, or condone discrimination or harassment and is committed to promoting
respectful conduct, tolerance and inclusion.” Among others, the HRAP applies to all of the
City’s elected officials.

[31] The HRAP mandates that all contracts with third party individuals and organizations
delivering services to the City must include a signed copy of the Declaration and are subject to
contract provisions regarding consequences for non-compliance.

(ii) Trustees

[32] The TCDSB has approximately 90,000 students and is the largest Catholic school board
in Canada. They are “separate schools” whose existence is protected by the Constitution Act,
 - Page 8 -

1867. They are operated by civil authorities called separate school boards. TCDSB trustees are
elected municipally and are accountable to the provincial government.

[33] The Education Act, R.S.O. 1990, c. E.2 sets out the duties of a school board trustee. In
particular, every school board must (i) “promote a positive school climate that is inclusive and
accepting of all pupils, including pupils of any … sexual orientation, gender identity, gender
expression” (s. 169.1(1)(a.1) of the Education Act requires that and (ii) “promote the prevention
of bullying” (s. 169.1(1)(a.2).

[34] Under s. 218.1(a) of the Education Act, trustees have the further duty to “maintain focus
on student achievement and well-being”.

[35] The TCDSB is guided by its Code of Conduct, which promotes an “inclusive community
rooted in the love of Christ… having due regard to the (a) Teachings of the Catholic Church, as
expressed through various documents of the Universal Church, the Bishops of Canada, the
Bishops of Ontario, and the Archdiocese of Toronto; (b) Education Act, Sections 1(4); 169.1;
301…”.

[36] The Catholic Bishops of Ontario’s “Pastoral Guidelines to Assist Students of Same Sex
Attraction” also direct Catholic schools to “consciously create an environment where students
who feel marginalized, rejected or vulnerable can experience safe, nurturing, inclusive
communities of faith”.

[37] One of the policies of the TCDSB that trustees are required to uphold and protect is the
“Catholic Equity and Inclusive Education Policy,” which states that, “The Toronto Catholic
District School Board (the ‘Board’) recognizes that all people are deserving of dignity and are
created equal in the image of God, each with inimitable characteristics (Genesis: 1:27). In
accordance with the Catholic Faith and the Church’s moral teachings as found in the Catechism
and other teachings of the Magisterium, the Board provides an educational environment which
supports and embraces diversity within its Catholic community, demonstrates respect for all, and
values each as child of God”.

[38] Trustees also act as education advocates. At the local level, trustees work on behalf of the
community and consider the unique needs of their communities when deciding what position to
take on any issue. A trustee’s role as an education advocate often extends beyond the boundaries
of the district school board and they often liaise with members of government, the school system,
and with local organizations or individuals in the community. An important role as a trustee is to
maintain a focus on students’ well-being and equity, and to participate in making decisions that
benefit the board's entire jurisdiction while representing the interests of their constituents.

Activism of defendant councillors and trustees

[39] All of the counsellor and trustee defendants have a long history of activism and advocacy
in the public interest, particularly with respect to human rights and LGBTQ2S+ issues.
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LGBT YouthLine

[40] As part of its response to concerns about bullying and discrimination against LGBTQ2S+
staff and students, the TCDSB created a link on its website to the website for LGBT YouthLine,
which is an LGBTQ2S+ youth-led non-profit organization that provides anonymous peer support
and referrals, trains youth to provide support to other youth, and provides resources so that
LGBTQ2S+ youth can make informed decisions. Its activities include:

(i) providing a confidential peer-based phone line and texting/live online chat
services to allow LGBTQ2S+ youth to communicate with peers about various
issues, including gender identity and/or sexual orientation, coming out, mental
health, relationships with friends, partners, and family, social isolation, and other
challenges they may be facing,

(ii) maintaining a confidential database of organizations serving LGBTQ2S+ youth,

(iii) maintaining a list of resources on various issues affecting LGBTQ2S+ youth,

(iv) running the Provincial Youth Ambassador Project, the 2019 cohort of which led
an assessment of the experiences and needs of LGBTQ2S+ youth in Ontario
resulting in the “Do Better: 2SLGBTQ+ Youth Recommendations for Change in
Ontario” report setting out recommendations to organizations, government, etc.,
as to how to better support LGBTQ2S+ youth,

(v) running YouthOrganize, a ten-month volunteer program that brings LGBTQ2S+

youth together to create and/or continue organizing initiatives, providing them
with access to skill-based training, project funding, and virtual community
building, and

(vi) providing outreach materials to schools, organizations, and community spaces to

share in their spaces or provide to youth with whom they engage.

The Initial Articles

[41] In a series of 28 articles written over a 12 week period between October 17, 2020, and
January 8, 2021 (previously defined as the Initial Articles), Volpe strongly opposed positions
taken by the defendant trustees relating to the LGBTQ2S+ community in the TCDSB.

[42] The plaintiffs submit that the only purpose of the Initial and YouthLine Articles was to
raise the issue of whether TCDSB policies with respect to the LGBTQ2S+ community were in
accordance with Roman Catholic doctrine. I review Volpe’s statements in those articles in some
detail below, as they are the bases upon which the defendants made the Impugned Statements
describing the plaintiffs, and the Initial and YouthLine Articles, as homophobic, transphobic, and
anti-LGBTQ2S+.
 - Page 10 -

[43] In an article dated October 15, 2020, entitled “Another gadfly soiling the reputation of
Catholic institutions”, Volpe criticized the TCDSB for allowing one of its teachers to express
concern about trustee Del Grande’s comments in which he compared the inclusion of terms such
as gender identity in the TCDSB Code of Conduct to terms such as “bestiality”, “pedophilia”,
“cannibalism”, “auto-erotic asphyxiation”, and “auto-vampirism”.

[44] In the October 15, 2020 article, Volpe inferred that the heterosexual standard of “sexual
propriety” he “prefer[red]” would be a “safeguard against predators who would victimize” his
children. He wrote:

For example, like most men, I prefer the intimate company of women – one
woman in particular. If I chose not to leave her or to abandon her for a man, that
would not make me homophobic. Nor would it make me homophobic if I wish
to place my children in an environment where standards of sexual propriety
serve as yet one more safeguard against predators who would victimize them.
[Emphasis added.]

[45] In an article dated November 3, 2020, entitled “Pompous and ineligible as Catholic
Trustee M de D attempts to ride Minister Lecce”, Volpe criticized de Domenico for his efforts to
make public an investigation into Del Grande’s comments. Volpe described de Domenico and
his “allies in the LGBTQ+” as “snivellers who hold convicted creator, counsellor to and
purveyor of child pornography—former Deputy Minister of Education and special advisor to
Kathleen Wynne—as their ‘mentor’” (emphasis added).

[46] In an article dated November 6, 2020, entitled “Minister Stephen Lecce takes control of
the TCDSB”, Volpe described “the LBGQT2+ lobby” as “probably the most intolerant
organization around”, and described the four defendant trustees as individuals “to whom
radical activist gadflies with their counter-culture Catholicism gravitated” (emphasis
added).

[47] In an article dated December 4, 2020, entitled “Code of conduct thuggery, gangsterism
and persecution”, Volpe described those seeking inclusion of LGBTQ2S+ protections in the
TCDSB Code of Conduct as “radical activists from the LGBTQ2+ community [who] have
launched what can only be described as an all-out witch hunt to eradicate the Catholic
ethic from Ontario’s School system” (emphasis added).

[48] In an article dated December 8, 2020, entitled “Time to put sexualized virtue-signalling
thugs in their place”, Volpe:

(i) described “the LGBTQ2+” community as “militant radical, self-proclaimed

advocates of ‘non-religious’ value structure (the LGBTQ2+)”,

(ii) accused “(the LGBTQ2+)” of having “taken aim to tear the system down”,
 - Page 11 -

(iii) identified “(the LGBT2Q+)” as following an agenda proposed by a “convicted

child pornographer” in league with “an openly lesbian politician who left her
male husband for another woman”,

(iv) stated that “(the LGBTQ2+)” had “seized control of due process to dictate an
agenda no self-respecting adult would foist on any child”,

(v) described LGBTQ2S+ “tactics” as “insidious, malicious and designed to tar

and feather anyone who does not agree with them”, and

(vi) described the four defendant trustees as having engaged in “‘moral’ thuggery”
and “virtue-signalling” (emphasis added).

[49] In articles written by Volpe dated November 23, December 4, and December 8, 2020, he
described one or more of the defendant trustees as “thugs”, “buffoons”, and “gangsters”.

Pizza Nova removes advertising from Corriere

[50] On November 17, 2020, a tweet was published by @Hashtag Kyle, who commented:

Sad to hear @PizzaNova is supporting Corriere Canadese’s homophobic &

transphobic publication. #pizza #pizzanova @PizzaNova hit me up for
details; not sure you want to be associated with Volpe’s homophobic &
transphobic rants – our community supports your Church St location well.
[Emphasis added.]

[51] Pizza Nova immediately withdrew its advertising from Corriere. By a tweet of the same
day, Pizza Nova stated:

Hi Kyle, the articles to which you refer are not in accordance to our beliefs.
Pizza Nova is a very inclusive company and as a result we are pulling our
advertising from Corriere Canadese. Please also check your email we have sent
you a response. [Emphasis added.]

Di Pasquale’s complaint to the NEPMC

[52] On December 8, 2020, Di Pasquale responded to the Volpe article of that date (discussed
at para. 48 above) by writing an email to the head of the National Ethnic Press and Media
Council (NEPMC) to express his concerns. Corriere is a member of the NEPMC.

[53] Later that day, Volpe sent a response to Di Pasquale stating that (i) Di Pasquale engaged
in “thuggery”, through “cowardly” conduct and “drive-by smears” demonstrating his
“hypocritical concern for the ‘most vulnerable citizens’”. He described Di Pasquale as a “tin pot
anti-democrat” who used “gangster tactics”. Volpe warned Di Pasquale to “[t]hink before you
soil your pants in front of experienced people”.
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The YouthLine Article

[54] On January 8, 2021, Volpe wrote an article published in Corriere entitled “TCDSB
website hosts Pornographic site defended by trustees” (previously defined as the YouthLine
Article).

[55] Volpe acknowledged in cross-examination that there are many positive aspects of the
LGBT YouthLine website, including its peer support services, links to third-party resources
addressing health and mental health, homelessness, bullying, abuse, violence, and coming out to
help LGBTQ2S+ youth struggling with those issues.

[56] Nevertheless, Volpe stated in his article:

Briefly, [YouthLine] is a smut site which, under cover of defending “diversity

and human rights”, as demanded by the Human Rights Commission, promotes the
purchase and sale of porno paraphernalia for sexual activities typically reserved
for “red light districts” under the cover of darkness.

[YouthLine] is a recruitment site operated by a self-professed LGBTQ+

umbrella organization to attract children that operates province wide.

Anyone “trolling” that website should be considered a pedophile. [Emphasis

added.]

[57] Volpe implied that the content on the YouthLine website was so inappropriate that
“[e]ven the organizers of the site must agree [because] they placed a HIDE button at the top right
of the page so that any child can quickly go to a pre-programmed Wikipedia page when an adult
comes into the room”.4

The TCDSB’s removal of the LGBT Youth Line link from the TCDSB’s website

[58] On the same day the YouthLine Article was published, the TCDSB removed the link to
the LGBT YouthLine website from its own website.

4
There is no evidence that the purpose of the “Hide” button was to enable users of the site to pursue the alleged
“pornography” described by Volpe, rather than to enable youth who were interested in the benefits of the LGBT
YouthLine website to safely explore the website without fear of being detected if a parent or other person would
enter the area in which the youth was accessing the website.
 - Page 13 -

The January 11 Wong-Tam Tweets

[59] Wong-Tam became aware of the YouthLine Article. On January 11, 2021, in response to
the YouthLine Article and the TCDSB decision to remove the LGBT YouthLine link, Wong-
Tam published the following tweets:

(i) “Volpe’s recent article labels the @LGBTYouthLine a ‘pornographic’ ‘smut site.’
He goes after progressive TCDSB trustees brave enough to stand up to his
homophobic and transphobic ramblings”;

(ii) “@LGBTYouthLine is a youth-led organization, whose mandate is to provide

peer support to queer youth, including Catholic ones. They provide life-
affirming support and help #LGBTQ2S+ kids feel safe in homes,
communities and schools. Volpe strives to do the exact opposite”; and

(iii) “The @cityoftoronto should not be spending any public dollars advertising in
any media that promotes homophobia, transphobia or any other form of
discrimination and hate. Same goes for government grants. Time to cut them
off”. [Emphasis added.]

The response of LGBT YouthLine to the removal of the link

[60] On January 11, 2021, LGBT YouthLine published a statement with respect to the
TCDSB’s removal of its link from the TCDSB’s website (the LGBT YouthLine Press Release).
LGBT YouthLine stated that the YouthLine Article was “homophobic, transphobic, and racist”,
and criticized the removal of the link as “a validation of homophobia and transphobia by the
TCDSB”. LGBT YouthLine stated, inter alia:

LGBT YouthLine is a 2SLGBTQ+ youth-led organization that has been providing

peer support and leadership opportunities to youth across Ontario for over twenty-
five years. Our HelpLine is one of the only supports available to most youth (29 &
under) across Ontario – especially during this pandemic […].

There is a long history accusing 2SLGBTQ+ people of pedophilia and of

“corrupting” children and youth and the article explicitly uses these
arguments against us. This rhetoric is harmful, unacceptable, and is overt
homophobia and transphobia. Volpe wrote this article to clearly de-legitimize
YouthLine’s work, including attacking the ways that we support Indigenous and
Black youth.

As a 2SLGBTQ+ youth organization, homophobic, transphobic, and racist

attacks on our work are sadly not new. What’s extremely concerning is that
the TCDSB felt it appropriate to remove our much-needed service from their
resources based on an article that is homophobic, transphobic, and racist.
The article was posted on Friday and our website was removed from the
TCDSB resources page within hours. The removal of our website is a
 - Page 14 -

validation of homophobia and transphobia by the TCDSB and has blocked

access to our critical service to 2SLGBTQ+ youth attending their schools.
[Emphasis added.]

The Yahoo Article

[61] The Yahoo Article reported on the TCDSB’s decision to remove the LGBT YouthLine
link from its website, with reference to the LGBT YouthLine Press Release and comments in
social media critical of the TCDSB decision. There is no reference in the Yahoo Article to the
January 11 Tweets.

[62] Prior to writing the Yahoo Article – and given LGBT YouthLine’s assertion that the
TCDSB referenced the YouthLine Article when providing notice of its decision – Di Filippo
reviewed the YouthLine Article, a selection of other articles Volpe had published in Corriere
about the TCDSB and LGBTQ2S+ issues, and publicly available articles relating to Volpe’s
position on LGBTQ2S+ issues during his time in Parliament.

[63] The Yahoo Article:

(i) describes, quotes from, and provides links to the YouthLine Article, as well as
blog posts written by a retired educator Volpe cited favourably in the YouthLine
Article, in order to set out Volpe’s criticism of the TCDSB’s inclusion of LGBT
YouthLine on its resources webpage,

(ii) describes, quotes from, and provides links to the LGBT YouthLine Press Release,

(iii) describes, quotes from, and provides links to a selection of comments posted on
social media by members of the public who were critical of the TCDSB’s
decision to remove LGBT YouthLine from its resources webpage. and

(iv) quotes a TCDSB statement relating to its decision and the public debate that
followed.

[64] The quote in the Yahoo Article headline (“Put it back and apologize”) was a verbatim
comment of a tweet in response to the removal of the link. The article also quoted the comments
of:

(i) a family doctor who stated that “As a physician who works with 2SLGBTQ+
youth, LGBT YouthLine is one of the first resources that I refer people to when
needed, particularly during the pandemic when other resources (groups, in-person
visits) are very limited” and that “TCDSB should add this listing back
immediately”, and

(ii) comments by others on social media who “echoed Youthline’s statement by

calling TCDSB’s actions [in removing the link] an example of ‘institutional
homophobia’, as well as ‘disgusting’ and ‘shameful’”.
 - Page 15 -

[65] In the Yahoo Article, the only words complained of are “Joe Volpe… [has] well
documented anti-LGBTQ+ views”, which appear in the following sentence:

The article, written by Joe Volpe, a former MP for Eglinton-Lawrence with

well documented anti-LGBTQ+ views, referred to YouthLine’s website as a
“recruitment site” for children and a “smut site” that “promotes the purchase and
sale of porno paraphernalia for sexual activities.” [Emphasis added.]

TCDSB reinstates the link to the LGBT YouthLine website

[66] On January 13, 2021, the day after the Yahoo Article was published and two days after
the LGBT YouthLine Press Release, the TCDSB reinstated the LGBT YouthLine link to its
website. LGBT YouthLine did not alter or remove any content or external links on its website.

[67] TCDSB Director of Education Brendan Browne made a public statement the next day in
which he recognized and acknowledged the “impact that [the removal of the link] may have had
on the [TCDSB’s] 2SLGBTQ youth and community”, commenting that “we are in education and
this is a profound teachable moment”.5

The January 14 Wong-Tam Tweet

[68] On January 14, 2021, Wong-Tam responded to a tweet authored by de Domenico and
tweeted:

The vitriolic attacks from Joe Volpe and Corriere Canadese on TCDSB trustees
supporting human rights must be called out. Governments should not be
advertising or providing grants to media such as @CCanadese who is
actively promoting hate against #LGBTQ2S+ students & families. [Emphasis
added.]

The first Slansky letter

[69] Counsel for the plaintiffs, Paul Slansky (Slansky), sent a letter to Wong-Tam dated
January 15, 2019 [sic - presumably intended to be dated January 2021] identifying himself as
counsel for Volpe and demanding a retraction and apology by end of business day on January 19,
2021, failing which Volpe would initiate legal action. This letter did not come to Wong-Tam’s
attention until she received a second letter from Slansky on January 29, 2021.

5
On February 4, 2021, the TCDSB adopted Browne’s January 14, 2021 statement.
 - Page 16 -

The Motion

[70] In her capacity as a City councillor, Wong-Tam proposed a notice of motion before City
Council on January 28, 2021 (previously defined as the Motion), returnable before City Council
on February 2, 2021.

[71] At the outset, the Motion specifically indicated: “The City of Toronto’s [HRAP] states
that we ‘will not tolerate, ignore, or condone discrimination or harassment and is committed to
promoting respectful conduct, tolerance and inclusion’”.

[72] The Motion sought relief, including that:

(i) the City cease all paid advertisements in Corriere, “following the reports of the
printing and distribution of homophobic and transphobic articles about the
Toronto Catholic District School Board, its Trustees and its LGBTQ2S+
students”; and

(ii) the City Manager be directed “to inform the Corriere Canadese that they must
sign and comply with the City of Toronto’s Human Rights and Anti-
Harassment/Discrimination Policies if they are to become a vendor again in the
future”. [Emphasis added.]

[73] In the Motion, Wong-Tam made the following comments, with footnote links to the
impugned Volpe articles:

(i) “The publisher of Corriere Canadese has been publishing articles targeting the
Toronto District Catholic School Board (TCDSB), its Trustees for their
support of LGBTQ2S+ students and families. The articles are portrayed as
factual news when they are opinion pieces that are discriminatory towards a
charter protected minority group”;

(ii) “The City’s advertising dollars should not be invested in a community newspaper
that espouses discrimination and harassment against” (a) “the LGBTQ2S+
community or any other charter protected minority group”, (b) “elected
officials”, and (c) “a public school board”;

(iii) “It is our opinion that Corriere Canadese” has (a) “attacked TCDSB Trustees De
Domenico, Di Pasquale, Li Preti, and Rizzo on numerous occasions, calling them
‘thugs’, a ‘rat pack’, and ‘gangsters’”, (b) “defamed YouthLine, a youth-led
charity that affirms and supports LGBTQ2S+ youth that provides life-saving peer
support and educational resources”, and (c) “dismissed our Human Rights Code”.
[Emphasis added.]

[74] In the Motion, Wong-Tam asked “that the City of Toronto advertise broadly in different
Italian language media outlets that have signed and actively honour our Declaration of
Compliance with Anti-Harassment/Discrimination Legislation & all other related City policies”.
 - Page 17 -

[75] The Motion also referred to Pizza Nova’s statement on November 17, 2020 that it was
cancelling its advertisements with Corriere.

[76] Ainslie seconded the Motion.

The second Slansky letter

[77] On January 29, 2021, Wong-Tam received Slansky’s second letter providing her with
notice under s. 5 of the Libel and Slander Act, R.S.O. 1990, c. L.12, and setting out Volpe’s
position regarding the alleged defamatory nature of both the Motion and the Tweets. The
plaintiffs again threatened legal action should Wong-Tam fail to publish a retraction and
apology.

The Joint Letter

[78] On or about February 1, 2021, the defendant trustees Rizzo, Di Pasquale, de Domenico,
and Li Preti sent the Joint Letter, addressed to Mayor Tory and City Council in support of the
Motion. The trustees stated:

(i) “After much misinformation in the Corriere Canadese we call on the

representatives of the City of Toronto to take a stand against homophobia
and transphobia. This abhorrent discourse should never be normalized or
sanctioned by our city”;

(ii) “The key reason why we support and encourage [the Motion] is the focus over
the past year the Corriere Canadese has had of writing homophobic and
transphobic articles that attack our students, staff and trustees. These articles
are well documented in a recent PressProgress article …, as well as demeaning a
local LGBTQ peer counselling service”;

(iii) “These articles spread homophobia & transphobia and … they have the
effect of intimidating and further marginalizing our LGBTQ students, as
well as intimidating our staff who do not want to be the focus of a
homophobic article. Our staff have received threats as a direct result of Joe
Volpe’s homophobic reporting”; and

(iv) “We urge you to take a stand against the outdated arguments and vile
homophobia and transphobia expressed in the Corriere Canadese, pull their
ads and support LGBTQ+ students and families in our city”. [Emphasis added.]

[79] The City of Toronto made the Joint Letter available on its website at some point after it
was submitted.
 - Page 18 -

The Press Conference

[80] On March 9, 2021, Wong-Tam led a virtual YouTube press conference (the Press
Conference) in support of the pending Motion on March 10, 2021 before City Council.6 A
number of community advocates, as well as Ainslie, Rizzo, Di Pasquale, and de Domenico were
present.

[81] The impugned statements of Wong-Tam at the Press Conference are:

(i) Wong-Tam stated that “There is a path to reconciliation. There is a path forward.
And that path is fairly simple: To cease the attacks, to cease the bullying, to
cease the harassment and to uphold equity and human rights”; and

(ii) In response to a question about free speech, Councillor Wong-Tam stated “But
what you’re seeing here in the Corriere Canadese is not necessarily the limiting of
free speech. What I think has happened is that they are limiting the free speech of
those within the Catholic School Board. The constant bullying and the attacks,
the personal vitriol that I have seen and read in the newspaper is very damaging.
And the truth of the matter is that it’s damaging to people who are doing good
work”. [Emphasis added.]

[82] The impugned statements of Ainslie at the Press Conference are:

(i) “[W]e have a policy that safeguards everyone regardless of their background,
against discrimination and harassment. Public resources are scarce. We do
everything that we can as a City Council to ensure that those policies are followed
and when we’re investing and [sic] money into publications that are distributing
news and information, we expect those publications to follow that policy”; and

(ii) “And you know, statistically, if in any school whether it’s grade school, high
school, it’s statistically proven that 10% of any given student population identifies
as LGBTQS+ and they have every right to have access to washrooms, to enter
the school, to receive the same education as everyone else unhindered and
unfettered and not to feel threatened. And you know, we need to do whatever
we can to promote that. And having a newspaper that’s beliefs are contrary
to that, or writings that are contrary to that, and being funded by the City of
Toronto, and this isn’t just about the Corriere Canadese, it’s about every
newspaper or publication, you know… City finances are scarce and we need to be
spending them properly to support equality and equity right across the City”.
[Emphasis added.]

6
The City Council adjourned its decision on the Motion to March 10, 2021 from the initial date of February 2, 2021.
 - Page 19 -

[83] The impugned statements of Rizzo at the Press Conference are:

(i) “As a Catholic, and as an Italian Canadian woman, I am sickened by the

hypocrisy of homophobia, transphobia and fearmongering emanating from
so-called Italian Canadians who think they are holier than the Pope”;

(ii) “I cannot stand back and witness homophobic and transphobic hatred to
our LGBTQ2S+ staff, students and families. I cannot in good conscience turn
the other cheek from the evidence of evil that is so clear and compelling. When
you see something that is not right, not just, not fair, you have a moral obligation
to do something”;

(iii) “I can no longer bear to let fear, ignorance, bigotry and adult amnesia to
manipulate my proud Italian community of which I am so proud. I ask Council
to promote the values of tolerance and respect for diversity in the city and to
support Councillor Wong-Tam’s and Ainslie’s motion to Council tomorrow.
Because no one should be afraid of their sexual orientation and gender.
Schools need to be safe spaces for students”; and

(iv) “I firmly reject the claims that religious beliefs and denominational rights
can be invoked as a legitimate justification for hatred and discrimination.
You cannot use scripture and denominational rights to spew bigotry,
contempt and malice”. [Emphasis added.]

[84] The plaintiffs also impugn the following comments by Di Pasquale at the Press
Conference:

(i) “When those newspapers start printing articles that discriminate and attack
our most marginalized students, it has a direct impact on our most marginalized
students’ mental health and well-being. These articles have the effect of
intimidating LGBTQ2S students and the staff who support them, while
enforcing a discriminatory message that doesn’t align with the views of our
Italian communities in Toronto”;

(ii) The articles “foster discrimination and intolerance” and “make our
LGBTQ2S students feel less safe”; and

(iii) “[I]t feels like a gut punch to see advertisements from the City … sometimes
besides articles that make LGBTQ students feel unsafe”.

The City Council passes an amended version of the Motion

[85] On March 10, 2021, City Council unanimously passed an amended version of the Motion
(the City Council Decision). The City Council Decision states as follows:
 - Page 20 -

1. City Council reaffirm its policies against hateful speech and its support for
the City of Toronto's Lesbian, Gay, Bisexual, Transgender, Queer and Two-
Spirit+ communities against discrimination and harassment.

2. City Council express its displeasure to the Corriere Canadese following

reports of the printing and distribution of homophobic and transphobic
articles about the Toronto Catholic District School Board, its Trustees and
Lesbian, Gay, Bisexual, Transgender, Queer and Two-Spirit+ families.

3. City Council direct the City Manager to inform all media vendors, including
the Corriere Canadese, that they must sign and comply with the City of
Toronto's Human Rights and Anti-Harassment/Discrimination Policies if
the City is to purchase advertising space in the future, as outlined in the
supplementary report (March 5, 2021) from the Chief Communications
Officer.

[86] The City Council Decision did not require the City to cease its advertising in Corriere.

The plaintiffs issue the statement of claim

[87] The plaintiffs issued a statement of claim on March 8, 2021, and issued a “Superseding
Statement of Claim” on or about April 12, 2021.

Evidence as to the defendants’ intent in making the Impugned Statements

[88] All of the defendants led evidence as to their good faith in making the Impugned
Statements.

[89] The evidence of the councillor defendants is that they made their comments in good faith
and did not intend to injure the plaintiffs. Rather, they brought attention to the LGBT YouthLine
incident and the plaintiffs’ publications because they believed it was incumbent on them as City
councillors to bring awareness to what they viewed as discrimination and harassment.

[90] Rizzo’s evidence is that when writing the Joint Letter and making her Press Conference
Statements, she believed that she acted pursuant to her statutory duty to promote a positive
environment at the TCDSB, and to ensure students who identify as LGBTQ2S+ felt included and
accepted within the Catholic school system. Rizzo’s evidence is that she has a sincere belief in
her moral duty to ensure that students of the TCDSB feel welcomed and safe in their school
environment. She stated on cross-examination:

I am telling you that as a school trustee, I have a responsibility and a duty...and a

duty to comply with our laws of our land, to make sure that we do what the
Ministry of Education suggests we have to do, what Ontario Human Rights says,
what the Catholic Church says. And you have to put them all together. It is, like,
not a melting pot, not one over the other. It is, like, what is best for kids in this
circumstance? And making sure that our kids can walk through our school doors
 - Page 21 -

and feel safe without fear, without being bullied, and being included and being
welcomed is what my job is, and that is what I do. And Mr. Volpe, you know
what? He can write what he wants, but not when it comes to hurting that
community, that is the most marginalized in our society. That is just not Catholic,
it is not Christian, period.

[91] Rizzo’s evidence is that “it was, and continues to be, [her] sincerely held belief, based on
the articles written by Mr. Volpe and published by the Corriere that criticize advancing issues of
LGBTQ2S+ inclusion and support at the TCDSB, that the plaintiffs are discriminatory,
homophobic and transphobic” and that those articles “further marginalize LGBTQ2S+ students,
staff and families of the TCDSB”.

[92] The evidence of Di Pasquale and de Domenico7 was that their conduct was motivated by
their understanding of a trustee’s role. They believe that trustees act as education advocates who
work on behalf of the community and consider the unique needs of their communities when
deciding what position to take on any issue.

[93] The evidence of Di Pasquale and de Domenico is that a trustee’s role as an education
advocate often extends beyond the boundaries of the district school board and that a trustee often
liaises with members of government, the school system, and with local organizations or
individuals in the community. An important role as a trustee is to focus on students’ well-being
and equity, and to participate in making decisions that benefit the board's entire jurisdiction
while representing the interests of their constituents.

[94] Both Di Pasquale and de Domenico held the good faith opinion that the articles by Volpe
and published by Corriere were homophobic and transphobic and harmed LGBTQ2S+ students
and staff within the TCDSB. They believed the articles fostered discrimination and intolerance
and caused LGBTQ2S+ students and staff to feel unsafe.

[95] Li Preti felt and continues to feel strongly that the plaintiffs’ publications cause harm to
LGBTQ2S+ students and staff of the TCDSB and that, in promoting or excusing discrimination,
they expose these students to bullying, humiliation and exclusion. Her understanding is based on
her engagement with students, staff and other stakeholders of the TCDSB as well as her review
of reports and research with respect to this issue.

[96] Di Filippo’s evidence was that she “wrote the Yahoo Article in good faith to inform
readers about an issue of public interest and importance, and without malicious intent. I did not
intend to interfere with the contractual obligations or economic interests of the Plaintiffs”.

7
Di Pasquale swore the primary affidavit for these defendants and de Domenico adopted the relevant evidence.
 - Page 22 -

Evidence of the plaintiffs’ alleged monetary damages from the Impugned Statements

[97] The evidence as to any monetary damages arising from the Impugned Statements is
contained in the following assertions in the Volpe affidavit:

(i) “[Corriere] lost advertising as a result of the bringing of the motion through
temporary suspension of advertising pending the motion and cancellation of other
advertising”;

(ii) “Advertising contracts have been cancelled”;

(iii) “Advertising contracts were cancelled as a result [of the Motion]”; and

(iv) “[Corriere] agreed to these terms [in the Motion, i.e., that it “sign on to a code of
conduct precluding discrimination”], but advertising has still not been re-
instituted”.

[98] The plaintiffs produced no documentary evidence of any contract it had which was
allegedly cancelled. The plaintiffs produced no evidence as to its advertising revenue from the
City, or general advertising revenue, either before or after the Motion. While calculations of
financial losses totalling $11.8 million are alleged at paras. 145-49 of the Superseding Statement
of Claim, there is no such evidence before the court on the motion.

Analysis

[99] The leading decision on the applicable law for anti-SLAPP motions is 1704604 Ontario
Ltd. v. Pointes Protection Association, 2020 SCC 22. Both parties rely on the principles in that
decision and I refer to them often in these reasons.

The purposes of s. 137.1

[100] The purposes of ss. 137.1 through 137.5 are set out in s. 137.1(1) which provides that:

The purposes of this section and sections 137.2 to 137.5 are:

(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.
 - Page 23 -

[101] The court in Pointes reviewed the history of s. 137.1, noting that an Anti-SLAPP
Advisory Panel (the Panel) had been created to advise the government on “how to respond to the
proliferation of SLAPPs”, which “culminated in the Anti-Slapp Advisory Panel: Report to the
Attorney General (‘APR’), which was published in October 2010”: at para. 7.

[102] In Pointes, the court noted the particular importance of the purposes of anti-SLAPP
motions given the express statement of such principles under s. 137.1(1). Côté J. held, at para.
11:

While legislative purpose bears on the exercise of statutory interpretation

regardless of whether a purpose clause exists, the fact that the APR explicitly
urged legislators to include such a clause for the benefit of judicial
interpretation, and that legislators consciously obliged, demonstrates that the
purpose clause in s. 137.1(1) commands considerable interpretative authority.
[Italics in original; emphasis added.]

[103] The court in Pointes held that “the Panel and its APR are persuasive authority for the
purposes of statutory interpretation”: at para. 14. Côté J. relied on the following excerpts from
the APR (quoted verbatim from Pointes):

(i) The APR “concluded that it is desirable for Ontario to enact legislation against
the use of legal processes that affect people's ability or willingness to express
views or take action on matters of public interest” (para. 10): at para. 8;

(ii) The APR advocated a "broad scope of protection" (para. 29) that would
"ensure that the full scope of legitimate participation in public matters is
made subject to the special procedure" (para. 31): at para. 9; and

(iii) [T]he APR … stated that the "legislation should include a purpose clause for the
benefit of judicial interpretation" (Summary of Recommendations, para. 2): at
para. 11. [Emphasis added.]

[104] Côté J. concluded, at para. 14:

[T]he APR was the clear impetus for the legislation, and was relied upon
heavily by the legislature in drafting s. 137.1 of the CJA. Accordingly, it is a
persuasive source that "provide[s] helpful information about the background
and purpose of the legislation" (CHRC, at para. 44). [Emphasis added.]

[105] Consequently, when interpreting s. 137.1, the court must take into account its legislative
purposes as set out in s. 137.1(1), including the background comments of the Panel in the APR.

The process to be applied under s. 137.1

[106] Under s. 137.1, the following process applies to determine whether an action should be
dismissed as anti-SLAPP litigation:
 - Page 24 -

(i) Under s. 137.1(3), a judge shall dismiss the proceeding if the defendant can
satisfy the court that the proceeding arises from an expression made by the person
that relates to a matter of public interest. Consequently, the initial onus is on the
defendant to obtain an anti-SLAPP dismissal;

(ii) Under s. 137.1(4), if the defendant satisfies the onus under s. 137.1(3), the court
shall not dismiss the proceeding if the plaintiff satisfies the court that:

a. There are grounds to believe that (1) the proceeding has substantial merit
(under s. 137.1(4)(a)(i)), and (2) the moving party has no valid defence in
the proceeding (under s. 137.1(4)(a)(ii)), and

b. The harm likely to be or have been suffered by the plaintiff, as a result of

the defendant’s expression, is sufficiently serious that the public interest in
permitting the proceeding to continue outweighs the public interest in
protecting that expression (under s. 137.1(4)(b)).

[107] I now address the relevant case law and evidence for each of the above steps in the
process.

Step 1: Does the Action arise from expressions made by the defendants that relate to a
matter of public interest (s. 137.1(3))?

[108] The law is settled that under s. 137.1(3), the onus is on the moving party to establish on a
balance of probabilities, that “the proceeding arises from an expression made by the person that
relates to a matter of public interest”. The court held in Pointes, at para. 23:

First, what does "satisfies" require? I am in agreement with Doherty J.A. of

the Court of Appeal for Ontario that "satisfies" requires the moving party to
meet its burden on a balance of probabilities (C.A. reasons, at para. 51). This is
in accordance with the jurisprudence interpreting the word "satisfied" …
Accordingly, the moving party must be able to demonstrate on a balance of
probabilities that (i) the proceeding arises from an expression made by the
moving party and that (ii) the expression relates to a matter of public
interest. [Emphasis added.]

[109] Consequently, the moving party must establish on a balance of probabilities that (i) the
moving party made an “expression”; (ii) the proceeding “arises from” that expression; and (iii)
the expression relates to a matter of “public interest”.

[110] I address each of these requirements below, addressing both the relevant law and the
application of the law to the facts of the present case.
 - Page 25 -

(i) Was there an expression made by the defendants?

(1) The applicable law

[111] “Expression” is defined in s. 137.1(2) as “any communication, regardless of whether it is

made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is
directed at a person or entity”.

[112] The court in Pointes held that: “[W]hat does ‘expression’ mean … is not in need of
further clarification, as the text makes it abundantly clear that ‘expression’ is defined
expansively”: at para. 25.

(2) Application of the law to the present case

[113] There is no dispute in the present case that all of the Impugned Statements arose out of
expressions made by the defendants.

[114] The January 11 and 14 Tweets, the Motion, the Joint Letter, the Press Conference
Statements, and the Yahoo Article were all communications, and, as such, constitute
“expressions” under s. 137.1(3).

(ii) Does the proceeding arise from the Impugned Statements?

(1) The applicable law

[115] The requirement that the proceeding “arises from” an expression provides an expansive
view of any litigation in which its genesis is a matter of expression, regardless of how the claim
is framed. The court held in Pointes, at para. 24:

[W]hat does "arises from" require? By definition, "arises from" implies an

element of causality. In other words, if a proceeding "arises from" an
expression, this must mean that the expression is somehow causally related to
the proceeding. What is crucial is that many different types of proceedings
can arise from an expression, and the legislative background of s. 137.1
indicates that a broad and liberal interpretation is warranted at the s.
137.1(3) stage of the framework. This means that proceedings arising from an
expression are not limited to those directly concerned with expression, such
as defamation suits. A good example of a type of proceeding that is not a
defamation suit, but that nonetheless arises from an expression and falls within the
ambit of s. 137.1(3), is the underlying proceeding here, which is a breach of
contract claim premised on an expression made by the defendant (this is explored
in further detail in Part IV of these reasons). Indeed, the APR explicitly
discouraged the use of the term "SLAPP" in the final legislation in order to avoid
narrowly confining the s. 137.1 procedure (para. 22), and the legislature obliged.
[Emphasis added.]
 - Page 26 -

(2) Application of the law to the facts of the present case

[116] There is no dispute in the present case that the Action arises out of the expressions in the
Impugned Statements.

[117] The defamation claim, by definition, arises from the Impugned Statements.

[118] The impugned statements in the Tweets, Motion, and Press Conference are all “causally
related to the other claims” (misfeasance in a public office, inducing breach of contract, and
wrongful interference with economic relations). The expression of the defendants’ views through
the various forms is the basis for all of the claims advanced by the plaintiffs.

(iii) Do the Impugned Statements relate to a matter of public interest?

(1) The positions of the parties

[119] The plaintiffs acknowledge that the January 11 Tweets and the Yahoo Article, which
addressed the issue of the removal and reinstatement of the LGBT YouthLine link, were
expressions that relate to a matter of public interest.

[120] However, the plaintiffs submit that the proceedings relating to the January 14 Tweets, the
Motion, the Joint Letter, and the Press Conference Statements do not arise from expressions of
public interest. The plaintiffs submit that:

(i) because the subject matter of those expressions related to efforts by the defendant
councillors and trustees to have the City cease advertising in Corriere until it
signed and complied with the HRAP and Declaration, the purpose of such
communication was an “unlawful” attempt to “censor” the media and restrict the
plaintiffs’ rights under s. 2(b) of the Canadian Charter of Rights and Freedoms
and, as such, could not be in the public interest; and

(ii) because the subject matter of those expressions addressed whether the plaintiffs
were homophobic, transphobic, or anti-LGBTQ2S+, it was not a matter of
“public” interest.

[121] I do not agree. For the reasons I discuss below, I find that the impugned expressions from
the January 14 Tweet, the Motion, the Joint Letter, and the Press Conference Statements were all
matters of public interest, since they related to (i) the use of public funds for City advertising,
and (ii) protection of the interests of constituents (including LGBTQ2S+ students, parents, and
teachers) pursuant to the statutory and other duties of the councillors and trustees.

[122] I first review the applicable law and then apply the law to the facts of the present case.
 - Page 27 -

(2) The applicable law

[123] The burden to establish that the expression arises out of a matter of public interest “is
purposefully not an onerous one”: Pointes, at para. 28. Côté J. stated at paras. 30-31:

Ultimately, the inquiry is a contextual one that is fundamentally asking what the
expression is really about. The animating purpose of s. 137.1 should not be
forgotten: s. 137.1 was enacted to circumscribe proceedings that adversely
affect expression made in relation to matters of public interest, in order to
protect that expression and safeguard the fundamental value that is public
participation in democracy. If the bar is set too high at s. 137.1(3), the motion
judge will never reach the crux of the inquiry that lies in the weighing
exercise at s. 137.1(4)(b). Thus, in light of the legislative purpose and
background of s. 137.1, it is important to interpret an "expression" that
"relates to a matter of public interest" in a generous and expansive fashion.

In conclusion, s. 137.1(3) places a threshold burden on the moving party to

show on a balance of probabilities (i) that the underlying proceeding does, in
fact, arise from its expression, regardless of the nature of the proceeding, and
(ii) that such expression relates to a matter of public interest, defined
broadly. To the extent that this burden is met by the moving party, then s.
137.1(4) will be triggered and the burden will shift to the responding party to
show that its underlying proceeding should not be dismissed. [Emphasis added.]

[124] I summarize the relevant principles concerning the “public interest” requirement as
follows:

(i) “Public interest” under s. 137.1(3) is to be given a “broad and liberal

interpretation”, to “ensure that the full scope of legitimate participation in public
matters is made subject to the special procedure”: Pointes, at para. 26, citing to
the APR at para. 31;

(ii) “The expression should be assessed ‘as a whole’”: Pointes, at para. 27, citing
Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 101;

(iii) A court must not parse out and scrutinize only the impugned remark. Rather, the
question is what the expression is about, when considered in the context in which
it was made: Schwartz v. Collette, 2020 ONSC 6580, at para. 77;

(iv) Because the expression must only arise out of “a matter” of “public interest”, “it
is not legally relevant whether the expression is desirable or deleterious, valuable
or vexatious, or whether it helps or hampers the public interest — there is no
qualitative assessment of the expression at this stage. The question is only
whether the expression pertains to any matter of public interest, defined broadly”:
Pointes, at para. 28;
 - Page 28 -

(v) A matter is of public interest if “some segment of the community would have a
genuine interest in receiving information on the subject”: Pointes, at para. 27,
citing Grant, at para. 102;

(vi) “The public interest includes such matters as the establishment, use, allocation
and maintenance of shared public goods, and therefore protects discussion and
advocacy about the distribution of benefits and burdens of social life”: Grist v.
TrueGrp Inc., 2021 ONCA 309, 156 O.R. (3d) 171, at para. 19; and

(vii) “[T]he resolution of purely private disputes between more or less equals —
disputes that have no immediate bearing on the rights or obligations of others —
can seldom be a matter of public interest”: Grist, at para. 19.

(3) Application of the law to the facts of the present case

(a) The councillors’ statements

[125] The councillors’ expressions arising in the Tweets, the Motion, and the Press Conference
Statements were made in such role as advocates for the interests of their constituents, as set out
in:

(i) the councillors’ obligation under s. 131(1)(a) of the CTA “to represent the public
and to consider the well-being and interests of the City”; and

(ii) the HRAP which applies to all of the City’s elected officials and (a) states that
“[t]he City of Toronto will not tolerate, ignore, or condone discrimination or
harassment and is committed to promoting respectful conduct, tolerance and
inclusion”, and (b) mandates that all contracts with third party individuals and
organizations delivering services to the City must include a signed copy of the
Declaration and are subject to contract provisions regarding consequences for
non-compliance.

[126] The councillors’ expressions related to both their own and the City’s commitment to
preventing and addressing harassment and discrimination, as well as respecting the dignity and
rights of the LGBTQ2S+ public they serve. There is a public interest in supporting groups who
face discrimination and harassment. Consequently, “the expression pertains to any matter of
public interest, defined broadly”: Pointes, at para. 28.

[127] The councillors’ expressions also related to the City’s use of taxpayers’ money. The
City’s advertisements in Corriere are publicly-funded. The public has an interest in how the City
uses its tax revenue. Consequently, the expressions relate to the “establishment, use, allocation
and maintenance of shared public goods, and [are] therefore protect[ed] discussion and advocacy
about the distribution of benefits and burdens of social life”: Grist, at para. 19.

[128] All City residents have a genuine interest in receiving information on the subject matter.
of the expression. Such interest is not limited to the segment of the community that includes
 - Page 29 -

members of the LGBTQ2S+ community, even though such a “segmented” interest would be
sufficient: Pointes, at para. 27.

[129] Consequently, a broad and liberal interpretation of the councillors’ expression establishes
a public interest. It is not a “private” matter of (i) seeking to “censor” a community newspaper,
or (ii) asserting homophobic conduct in a private context.

[130] Corriere remains free (and has continued) to publish any statements on the issues it
considers appropriate. None of the defendants brought a defamation claim against Corriere.
Rather, the issue was the protection of the City’s residents under the policies promoted in the
HRAP, and the use of public funds to advertise in a publication which the councillors believed
had views which were inconsistent with the HRAP and the best interests of City residents.

[131] For the above reasons, I find that Wong-Tam and Ainslie have met their burden under s.
137.1(3).

(b) The Trustees’ Joint Letter and Press Conference Statements

[132] All of the trustees collectively made the impugned statements in the Joint Letter.

[133] Only Rizzo and Di Pasquale’s statements at the Press Conference are impugned. Li Preti
did not attend the Press Conference and de Domenico’s statements at the Press Conference are
not impugned.

[134] The statements by the trustees in the Joint Letter and Press Conference were made in
support of a public decision to be made by the City as to whether it would continue to spend
taxpayer dollars to advertise in a publication with articles written by Volpe that the trustees
believed were homophobic, transphobic, and anti-LGBTQ2S+.

[135] Consequently, as with the councillors, the Joint Letter and Press Conference Statements
related to the decision by the City in respect of its use of funds and its association with an
allegedly homophobic publication. Such expressions relate to the “establishment, use, allocation
and maintenance of shared public goods,” and are therefore protected as “discussion and
advocacy about the distribution of benefits and burdens of social life”: Grist, at para. 19.

[136] The treatment of LGBTQ2S+ students in the TCSDB is a matter of public interest. The
trustees believed that Volpe and Corriere were writing homophobic, transphobic, and anti-
LGBTQ2S+ articles which affected their constituents. The trustees’ expression raised those
public concerns, consistent with their role as elected officials (like the councillors) to protect the
interests of their constituents. Such conduct affects the safety and well-being of TCDSB
students, and as such, it is in the public interest that the trustees can raise such concerns.

[137] The trustees’ role under the Education Act, TCDSB Code of Conduct, Pastoral
Guidelines, and inclusion policies, as set out at paras. 33-37 above, also are a basis of a trustee’s
role to raise issues of concern that they believe affect the safety and well-being of any TCDSB
student, and in the present case, the LGBTQ2S+ community at TCDSB schools.
 - Page 30 -

[138] The trustees never attempted to censor Corriere, despite the often intemperate language
used by Volpe to describe the trustees and their conduct. The trustees raised concerns in relation
only to the issue before the City on the Motion, which was a matter of public interest.

[139] For the above reasons, I find that the trustee defendants satisfied the requirement under s.
137.1(3) that the proceeding against them arises from an expression that relates to a matter of
public interest.

Step 2: Have the plaintiffs established that there are grounds to believe that the
proceeding has substantial merit and that there are no valid defences? (s.
137.1(4)(a))

(i) The burden of proof required under s. 137.1(4)(a)

[140] Before considering the specific issues of the merits of the causes of action pleaded and
the applicable defences before the court, I make the following general comments on the burden
of proof under s. 137.1(4) for the plaintiff to establish both that (i) “the proceeding has
substantial merit” (s. 137.1(4)(a)(i)), and (ii) “the moving party has no valid defence in the
proceeding” (s. 137.1(4)(a)(ii)).

[141] The legal principles governing the burden of proof under s. 137.1(4)(a) are set out in
Pointes and are not contested by the parties. I summarize the applicable principles as follows:

(i) “To the extent that [the s. 137.1(3)] burden is met by the moving party, then
s. 137.1(4) will be triggered and the burden will shift to the responding party
to show that its underlying proceeding should not be dismissed”: Pointes, at
para. 31;

(ii) The plaintiff must satisfy the court that there are “grounds to believe” that the
proceeding has “substantial merit”: s. 137.1(4)(a)(i) and that the “moving party
has no valid defence in the proceeding”: s. 137.1(4)(a)(ii);

(iii) The plaintiff must establish a “real prospect of success” to meet both the
“substantial merit” and “no valid defence” requirements under s.
137.1(4)(a): Pointes, at paras. 49 and 59;

(iv) “[A] claim with merely some chance of success will not be sufficient to
prevail. Nor will a claim that has been merely nudged over the line of having
some chance of success. A real prospect of success means that the plaintiff's
success is more than a possibility; it requires more than an arguable case. As
I said in the preceding paragraph, a real prospect of success requires that the
claim have a prospect of success that, while not amounting to a demonstrated
likelihood of success, tends to weigh more in favour of the plaintiff”: Pointes,
at para. 50.
 - Page 31 -

(v) “In other words, ‘substantial merit’ and ‘no valid defence’ should be seen as
constituent parts of an overall assessment of the prospect of success of the
underlying claim”: Pointes, at para. 59;

(vi) The claim “must be legally tenable and supported by evidence that is reasonably
capable of belief”: Pointes, at para. 49;

(vii) It is not sufficient to show that it is “possible” that a defence would not
succeed: 2504027 Ontario Inc. o/a S-Trip! v. Canadian Broadcasting
Corporation (CBC) et al., 2021 ONSC 3471, at para. 35; and

(vii) Under s. 137.1(4)(a), the plaintiff must show that none of the defences have a
real prospect of success. The plaintiff must show that based on the applicable
law and evidence before the court, such a finding weighs more in favour of
the plaintiff: Pointes, at para. 60. [Emphasis added.]

[142] Summarizing the above principles, a plaintiff can only meet the burden under s.
137.1(4)(a) if the plaintiff can establish that, based on the applicable law and evidence before the
court, it weighs more in favour of the plaintiff that (i) the proceeding has substantial merit and
(ii) the moving party has no valid defence in the proceeding. If the plaintiff fails either of those
evidentiary burdens, the action shall be dismissed under s. 137.1(3) (if the defendant establishes
that the proceeding arises from an expression made by the defendant that relates to a matter of
public interest).

(ii) Have the plaintiffs established that there are grounds to believe that the
proceeding has substantial merit? (s. 137.1(4)(a)(i))

[143] The plaintiffs rely upon four principal causes of action to support their claim: (i)
defamation, (ii) misfeasance in public office, (iii) inducing breach of contract, and (iv) wrongful
interference with economic relations. For the reasons that follow, I find that only the defamation
claim has substantial merit under the Pointes test.

[144] The plaintiffs also rely on an “abuse of authority” claim based on the decision in
Roncarelli v. Duplessis, [1959] S.C.R. 121, although the plaintiffs acknowledge in their factum
that “[i]t is unclear whether abuse of authority remains as an independent tort or whether it is
subsumed by Misfeasance of Public Office”. While I find that the abuse of authority doctrine set
out in Roncarelli has been subsumed in the tort of misfeasance in public office, I find that in any
event, the plaintiffs have not established a real prospect of success even if such a separate claim
could be made.

[145] I address each of the causes of action below.

 - Page 32 -

(1) Defamation

(a) The applicable law to establish a claim for defamation

[146] To succeed on a claim for defamation, the plaintiff must prove that:

(i) The words complained of were published, meaning that they were communicated
to at least one person other than the plaintiff;

(ii) The words complained of referred to the plaintiff; and

(iii) The impugned words were defamatory, in the sense that they would tend to lower
the plaintiff’s reputation in the eyes of a reasonable person: Bent v. Platnick, 2020
SCC 23, at para. 92 (citing Grant, at para. 28 and P.A. Downard, The Law of
Libel in Canada (4th ed. 2018), at paras. 1.2 to 1.14).

[147] A defamatory statement is one that causes the plaintiff “to be regarded with feelings of
hatred, contempt, ridicule, fear, dislike, or disesteem”: Vander Zalm v. Times Publishers, 1980
CanLII 389 (B.C.C.A.), at para. 4.

(b) The review of defences and existing reputation on the s.

137.1(4)(a)(i) test for a defamation claim

[148] The plaintiffs submit that the determination under s. 137.1(4)(a)(i) of whether a
defamation claim has substantial merit requires only a review of the Impugned Statements to
determine if a finding of defamation weighs in favour of the plaintiff. Under this approach:

(i) the analysis of the strength of any defences to the defamation claim would occur
under the s. 137.4(a)(ii) review; and

(ii) if there is uncertainty on the evidence as to the extent of the plaintiff’s reputation
at the date of the impugned statements, that uncertainty should be resolved at trial.

[149] The defendants do not contest that the analysis of the validity of the defences take place
under s. 137.1(4)(a)(ii). I agree.

[150] Such an approach is reasonable. Otherwise, the requirements under s. 137.1(4)(a) become
conflated, if words which are defamatory would not be found to establish “substantial merit” of
the claim if there was a real prospect of success for a “valid defence”. Such an approach defeats
the legislative intent of having separate requirements under ss. 137.1(4)(a)(i) and (ii) that the
plaintiff satisfy the court that there are grounds to believe both that (i) the claim has substantial
merit and (ii) there are no valid defences.

[151] However, the defendants also submit that the court should find that the defamation claim
has no substantial merit, based on the defendants’ submission that the plaintiffs would have a
low reputation because of the “self-inflicted” reputational damage from Volpe’s statements in the
 - Page 33 -

Initial and YouthLine Articles. The defendants submit that “[a]ny negative effect on the
plaintiffs’ reputation was of their own doing and as a result of the articles they chose to publish”.

[152] I do not agree that such an approach is appropriate in the present case. Consequently, I do
not address whether such a position could be considered if the evidence supported a conclusion
that a defendant’s impugned statements could not have lowered the plaintiff’s reputation any
further.

[153] In the decision of the Court of Appeal in Pointes, reported at 2018 ONCA 685 and upheld
by the Supreme Court, the court cautioned against the motion judge taking a “deep dive” on the
merits of the claim and the defences, which is the role of the trial judge. The court held, at para.
78:

[T]he motion judge must avoid taking a “deep dive” into the ultimate merits of the
claim under the guise of the much more limited merits analysis required by s.
137.1(4)(a).

[154] Consequently, the courts have not engaged in a “deep dive” into the reputation of the
plaintiff outside the scope of the alleged defamation (an assessment that would be required at
trial). In Rebel News Network Ltd. v. Al Jazeera Media Network, 2021 ONSC 1035, the motion
judge held, at paras. 41-43:

While Al Jazeera argues that cases such as WIC Radio Ltd. v. Simpson 2008 SCC
40 (CanLII) permit the Court to consider "how much is publicly known about the
plaintiff" when assessing the defamatory nature of a statement, that analysis is
typically carried out when the full merits of the claim are in play, either by way of
trial or summary judgment. I agree with Rebel that the Court's job at this early
stage of the proceeding is more of a screening function than a full determination
of the merits.

In my view, Al Jazeera's argument cannot be accepted at this stage. The issue of

Rebel's existing reputation is one that inherently requires the Court to perform the
frowned upon "deep dive". Rebel's existing reputation as at the time of publication
is an issue better suited for a consideration of Al Jazeera's defence(s) or perhaps
Rebel's claimed damages. As the Court must not wade past shallow waters when
conducting a section 137.1 analysis, I am not prepared to draw any conclusions
with respect to the status of Rebel's reputation as at the date of publication of the
article and video.

I find that the three statements are quite capable of being defamatory, and as such
there are grounds to believe that Rebel's action has substantial merit.
 - Page 34 -

[155] The Court of Appeal in Levant v. DeMelle, 2022 ONCA 79,8 did not interfere with the
motion judge’s decision that the plaintiff’s defamation claim had met the substantial merit test
under s. 137.1(4)(a)(i), despite the defendants’ reliance on the plaintiff’s allegedly low
reputation.

[156] A similar approach has been taken by the courts in other cases where the views of the
plaintiffs were well-known, with the courts (i) finding that the test under s. 137.1(4)(a)(i) had
been met to establish the substantial merit of the defamation claim, but (ii) granting the anti-
SLAPP motion on the basis of the plaintiff failing to (a) establish under s. 137.1(4)(a)(ii) a real
prospect of success that there are no valid defences and (b) satisfy the court on the weighing test
under s. 137.1(4)(b).

[157] By way of example in the following cases:

(i) In Bernier v. Kinsella, 2021 ONSC 7451, MacLeod R.S.J. held that despite the
evidence of the plaintiff’s existing reputation, the defendant’s comments that the
plaintiff was a racist, misogynist or anti-Semitic would lower the plaintiff’s
reputation and as such met the test under s. 137.1(4)(a)(i): at paras. 46-48. As the
court held, at para. 49, “[t]he bar for establishing defamation is reasonably low.
The challenge for a plaintiff is to overcome potential defences and in the case of a
s. 137.1 motion, to show that there is no reasonable prospect of any of the
defences succeeding.”

The court granted the anti-SLAPP motion based on the failure of the plaintiff to
(a) establish a real prospect of success that the defences of justification and fair
comment were not valid: at paras. 50-67, and (b) satisfy the weighing test on the
evidence before the court: at paras. 68-74;

(ii) In Mondal v. Evans-Bitten, 2022 ONSC 809, Morgan J. held that the plaintiff had
established that the re-tweeting of his tweets by the defendant met the substantial
merit test under s. 137.1(4)(a)(i). He held, at para. 24, that “Although most of the
damage is done by Mr. Mondal's own words, re-tweeting and forwarding his rude
and pejorative tweets, with an accompanying sentence that draws further attention
to their rudeness and distasteful message, cannot help but lower the professional
and personal reputation among Mr. Mondal's peers and clientele”.

Morgan J. granted the anti-SLAPP motion based on the failure of the plaintiff to
establish a real prospect of success that the defence of fair comment was not
valid: at paras. 32-41.

8
Unless otherwise noted, all references in these Reasons to Levant are to the Court of Appeal decision, in which the
court heard the appeals both from Rebel News Network and Levant v. Demelle, 2021 ONSC 1074.
 - Page 35 -

[158] In the present case, I follow the above approach and do not assess the strength of the
plaintiffs’ reputation in my analysis under s. 137.1(4)(a)(i).

[159] On the evidence, it is known that some individuals and Pizza Nova had commented on
their view as to the homophobic and transphobic nature of the Initial and YouthLine Articles.
However, there is insufficient evidence to establish such a low reputation that any alleged
defamation could not have lowered the plaintiffs’ reputation.

(c) Application of the law to the facts of the present case

[160] For the reasons I discuss below, I find that on the basis of the applicable law and the
evidence, the plaintiffs’ defamation claim has substantial merit.

[161] There is a factual basis, supported by the applicable law, that establishes that the claims
weigh in their favour (subject to the issue of valid defences and the weighing test addressed
below).

[162] I find that (i) the “sting” of the Impugned Statements was that the plaintiffs were
homophobic, transphobic, and anti-LGBTQ2S+ and (ii) such words “tend to lower [the
plaintiffs’] reputation in the eyes of a reasonable person”.

[163] By way of example, summarized from the evidence above:

(i) Wong-Tam’s January 11 Tweets referred to Volpe’s “homophobic and

transphobic rantings”; stated that Volpe “strives” to make “LGBTQ2S+ kids [not]
feel safe in homes, communities and schools”; and implied that Corriere was a
publication that “promotes homophobia, transphobia”;

(ii) Wong-Tam’s January 14 Tweet stated that Corriere is “actively promoting hate
against LGBTQ2S+ students & families”;

(iii) After referring to Volpe and Corriere’s articles, the Motion suggested that
Corriere was a “community newspaper that espouses discrimination and
harassment against the LGBTQ2S+ community”;

(iv) The Joint Letter stated that the plaintiffs were “writing homophobic and
transphobic articles that attack our students”, with articles that “spread
homophobia & transphobia and … have the effect of intimidating and further
marginalizing our LGBTQ students”, with “outdated arguments and vile
homophobia and transphobia”;

(v) Statements by the councillors at the Press Conference implied that Corriere was
engaged in “bullying”, “harassment”, and failing to “uphold equity and human
rights”; and that Corriere’s beliefs were “contrary” to equal rights for LGBTQ2S+
students;
 - Page 36 -

(vi) Rizzo stated at the Press Conference that Volpe engaged in “the hypocrisy of
homophobia, transphobia and fearmongering”, through “homophobic and
transphobic hatred to our LGBTQ2S+ staff, students and families”, demonstrating
“evil that is so clear and compelling”, “fear, ignorance, bigotry”, “hatred” and
“discrimination” while “spew[ing] bigotry, contempt and malice”;

(vii) Di Pasquale stated at the Press Conference that the Volpe articles “discriminate
and attack our most marginalized students”, “foster discrimination and
intolerance” and “make LGBTQ students feel unsafe”; and

(viii) The Yahoo Article stated that Volpe had “well documented anti-LGBTQ+
views”.

[164] The above evidence provides sufficient support that the Impugned Statements were
published and refer to the plaintiffs.

[165] I also find that it weighs in favour of the plaintiffs that a court would find that the
Impugned Statements are defamatory, i.e., that they tend to lower the reputation of the plaintiffs.
The above examples of comments, read collectively, establish that the sting of the defendants’
comments was that the plaintiffs were homophobic, transphobic, and anti-LGBTQ2S+.
Comments with that sting tend to lower the reputation of the plaintiffs.

[166] The defendants submit that “[i]t is not defamatory to draw attention to a person’s own
statements”, relying on the decision in Wright v. Van Gaalen, 2011 BCSC 707.

[167] However, in Wright, Schultes J. held, at para. 112, that “[o]bviously, merely forwarding
someone's own comments in an email cannot in itself amount to defamation - it must be found in
something actually written by the person who forwarded it”. In the present case, as set out above,
the defamation claim is grounded in the Impugned Statements, all of which commented on the
concerns arising from the plaintiffs’ articles.

[168] Further, as in Mondal, the plaintiffs were not only “forwarding” Volpe’s comments about
the LGBTQ2S+ community, but did so with “accompanying” commentary (much more so than
the singe sentence in Mondal) “that draws further attention” to the Volpe comments, and as such,
“cannot help but lower the professional and personal reputation” of the plaintiffs: at para. 24.

[169] Consequently, I follow the approach of the courts as discussed above and find that the
plaintiffs have established the “substantial merit” of their defamation claim, i.e., a real prospect
of success that weighs in their favour.

[170] However, as I discuss below, I find that as in Bernier, Mondal, and Levant, the plaintiffs
failed to meet the requirements under either s. 137.1(4)(a)(ii) or s. 137.1(4)(b).

[171] Before addressing the defences to the defamation claim and the weighing test, I briefly
review the other causes of action relied upon by the plaintiffs, which I find do not establish a real
prospect of success.
 - Page 37 -

(2) Misfeasance in a public office (abuse of process)

(a) The applicable law

[172] The claim of misfeasance in public office is made against the defendant councillors and
the trustees.

[173] The elements of the tort of misfeasance in a public office are summarized in The Catalyst
Group Inc. v. Dundee Kilmer, 2022 ONCA 168, at paras. 12-16, reviewing the seminal case of
Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 63. I adopt the summary of the
law as set out in the Wong-Tam and Ainslie factum (footnotes omitted):

Misfeasance in public office is an intentional tort, grounded in bad faith, and is

difficult to establish. To succeed in a claim for misfeasance in a public office, the
Plaintiffs must prove:

1. The defendants were public officials exercising public functions at

the relevant time;

2. The public official deliberately engaged in an unlawful act in their

public capacity, typically established by proving any of:

a) An act in excess of the public official’s powers;

b) An exercise of a power for an improper purpose; or

c) A breach of statutory duty;

3. The public official acted in bad faith, being aware both that their
conduct was unlawful and that it was likely to harm the plaintiff;

4. The public official’s tortious conduct was the legal cause of the
plaintiff’s injuries; and

5. The injuries suffered are compensable in tort law.

The fact that a public official makes a decision that harms a member of the public
is not, in and of itself, a basis to infer bad faith.

[174] As I discuss at para. 144 above, the plaintiffs also rely on an “abuse of authority” claim
based on the decision in Roncarelli v. Duplessis, [1959] S.C.R. 121, in which the court set out
the requirements for the tort as (i) the exercise of government authority by a government actor,
(ii) outside the scope of legal authority, and (iii) which intentionally damages a person’s
interests: at pp. 158-59.

[175] The plaintiffs submit that the availability of a claim in abuse of authority, outside the tort
of misfeasance in public office, is “uncertain”. I do not agree.
 - Page 38 -

[176] In Odhavji Estate, at para. 19, the court incorporated its analysis in Roncarelli in its
review of the history of the tort of misfeasance in public office. I rely on that analysis to
conclude that the tort of abuse of authority does not remain as an independent tort and instead is
subsumed by the tort of misfeasance of public office.

[177] However, the issue is not determinative as the plaintiffs have not established a real
prospect of success on an abuse of authority claim (even if available), since the law and evidence
do not support a finding that the claim weighs in their favour.

[178] Consequently, I address the application of the law to the facts of the present case for both
the misfeasance in public office and abuse of authority claim.

(b) Application of the law to the facts of the present case

[179] There is no evidence that any of the councillors or trustees deliberately engaged in any
act that could constitute either misfeasance in public office or an abuse of authority, on the
“weighs in favour of the plaintiffs” threshold required under Pointes.

[180] There is no evidence that any of the councillors or trustees acted outside the bounds of
their public functions.

[181] Under s. 131 of the CTA, the councillors were required to, amongst other things, (i)
represent the public and consider the well-being and interests of the City, (ii) develop and
evaluate the policies and programs of the City, and (iii) ensure that administrative policies,
practices and procedures and controllership policies, practices and procedures are in place to
implement the decisions of council.

[182] The evidence of the councillors is that the Impugned Statements arising from the Tweets,
Motion, and Press Conference were made in their good faith efforts to represent their
constituents based on their views as to the well-being and best interests of residents of the City.

[183] The trustees acted in accordance with their duties under the Education Act and under the
various policies and codes of conduct governing the TCDSB.

[184] There is no evidence that any of the trustees engaged in an unlawful act, outside the scope
of their duties as trustee, or in bad faith with the intention to harm the plaintiffs. To the contrary,
there is nothing unlawful about seeking to protect the interests of LGBTQ2S+ students, parents
and teachers in the TCDSB schools.

[185] The plaintiffs base their claim of “bad faith”, “unlawful” conduct, and “malice”, all on
the submission that (i) the councillors and trustees would have known that the effect of their
conduct would have been to end City advertising in Corriere, and (ii) such conduct would be a
violation of the plaintiffs’ Charter rights to freedom of expression.

[186] The plaintiffs further submit that such conduct is an act in excess of the councillors’
powers, done for an improper purpose, or a breach of statutory duty.
 - Page 39 -

[187] I do not agree with the plaintiffs’ submissions.

[188] The only evidence before the court is that the councillors acted in good faith to address
the public interest in having taxpayer funds being used to advertise in a newspaper which the
councillors believed to be homophobic, transphobic, and anti-LGBTQ2S+, in a manner contrary
to both the HRAP and the interests of the councillors’ constituents.

[189] The councillor defendants explicitly indicated at the outset of the Motion that they were
bringing the Motion because of their duties and obligations under the HRAP as City councillors.
At all times the councillor defendants acted in good faith.

[190] Similarly, the trustees acted in good faith with respect to the Motion, consistent with their
obligation to protect the interests of LGBTQ2S+ students, parents and teachers in the TCDSB
schools.

[191] There is no evidence that either the councillors or the trustees were motivated by malice.

[192] Councillors and trustees must be able to take positions on issues of importance to their
constituents, without facing the risk of a claim for misfeasance in public office when a person
disagrees with that position. Such an approach is consistent with the comments of the court in
The Catalyst Capital Group, at para. 16, in which the court adopted its earlier comment in
Pikangikum First Nation v. Nault, 2012 ONCA 705, 298 O.A.C. 14, at para. 77, leave to appeal
refused, [2013] S.C.C.A. No. 10, that:

The tort of misfeasance of public office is difficult to establish. The plaintiff

must prove more than mere negligence, mismanagement or poor judgment.
To succeed, the plaintiff must demonstrate that the defendant knowingly
acted illegally and in bad faith chose a course of action specifically to injure
the plaintiff. [Emphasis added.]

[193] For the above reasons, the plaintiffs have failed to establish a real prospect of success
against the councillors or the trustees on the misfeasance in public office claim, or the abuse of
authority claim if it is considered as an independent tort. There are no grounds to believe that
either claim has substantial merit, i.e., that such a finding weighs in favour of the plaintiffs.

(3) Inducing breach of contract

(a) The applicable law

[194] This claim is brought against the defendant councillors and trustees.

[195] In Drouillard v. Cogeco Cable Inc., 2007 ONCA 322, 86 O.R. (3d) 431, the court set out
the required elements to establish the tort of inducing breach of contract, at para. 26:

(i) The plaintiff had a valid and enforceable contract with a third party that was
breached;
 - Page 40 -

(ii) The defendant had knowledge of this contract;

(iii) The defendant’s conduct was intended to, and did in fact cause, the third party to
breach the contract; and

(iv) The plaintiff suffered damage as a result of the breach.

[196] The law on this issue is not in dispute on this motion.

(b) Application of the law to the facts of the present case

[197] There is no evidence to support a claim for inducing breach of contract against either the
councillors or the trustees. None of the requirements of the tort weigh in the plaintiffs’ favour.

[198] There is no evidence that the plaintiffs had a contract which was suspended as a result of
the defendants’ Impugned Statements. Even if there was a “temporary suspension of advertising
pending the motion”, as stated by Volpe, there is no evidence that there was an existing contract
with the City that was breached.

[199] Wong-Tam’s evidence is that the City purchased advertisement space in Corriere on a
“buy-as-we-need-basis”. The plaintiffs filed no evidence to the contrary. Consequently, there is
no evidence of a contract that was breached.

[200] There is no evidence that the defendants had knowledge of a contract between the City
and the plaintiffs, even if it existed (which the plaintiffs have not established).

[201] Even if there was a contract which the councillors or trustees knew about, the Motion did
not require the City to breach such a contract with the plaintiffs and there is no evidence that the
City did so. The City was not contractually obligated to purchase advertising in Corriere.

[202] The City Council Decision did not require the City to cease advertising with Corriere.

[203] Finally, the plaintiffs have not provided any evidence of losses that they suffered from the
alleged breach of contract.

[204] Consequently, the plaintiffs have failed to establish that, based on the law and facts
before the court, the success of the inducing breach of contract claim weighs in their favour.

(4) Wrongful interference with economic relations

[205] This claim is brought against the defendant councillors and trustees.

(a) The applicable law

[206] The elements to establish a claim for wrongful interference with economic relations were
reviewed in Grand Financial Management Inc. v. Solemio Transportation Inc., 2016 ONCA
175, 395 D.L.R. (4th) 529, at para. 62, leave to appeal refused, [2016] S.C.C.A. No. 183:
 - Page 41 -

(i) The defendant intended to injure the plaintiff’s economic interests;

(ii) The interferences must have been by illegal or unlawful means; and

(iii) The plaintiff suffered economic harm or loss as a result.

[207] Further, the scope of the tort is “narrow” and is only available where a defendant commits
an unlawful act against a third party, and that act intentionally causes harm to the plaintiff: A.I.
Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12, [2014] 1 S.C.R. 177, at para. 5.

(b) Application of the law to the facts of the present case

[208] For the reasons discussed at paras. 185-91 above, there is no evidence that any of the
defendant councillors or trustees intended to injure the plaintiffs’ economic interests. On that
basis alone, the plaintiffs cannot establish a real prospect of success for this claim.

[209] The plaintiffs submit that the intent to injure their economic interests and the unlawful
means are established because the trustees supported the Motion which sought to “censor”
Corriere and infringe their Charter rights. I do not agree.

[210] The evidence was that the defendant councillors were concerned about the use of public
funds for advertisements in a newspaper that they believed espoused homophobic, transphobic,
and anti-LGBTQ2S+ views. Wong-Tam and Ainslie sought to ensure that third party media
vendors complied with the HRAP and the Declaration. Such evidence does not establish that the
councillor defendants intended to injure the plaintiffs’ economic interests.

[211] Similarly, the trustees acted to protect the interests of their constituents, i.e., students,
teachers, and parents. The trustees acted pursuant to their good faith understanding of their
obligations under the Education Act, the TCDSB Code of Conduct, and other relevant TCDSB
policies.

[212] Consequently, the plaintiffs’ assertion of an intent to injure or unlawful act, based solely
on the trustees’ good faith efforts to protect the safety and inclusion of the LGBTQ2S+
community, is unsupportable on the evidence.

[213] Finally, there is no “third party” against whom the alleged unlawful act took place. It was
not unlawful conduct towards the City to ask it to take steps to ensure that Corriere complied
with the HRAP if the City was to use taxpayer funds for advertising. That is a decision which
can be made by the City, and it is not unlawful for any individual, let alone a trustee or
councillor, to ask the City to take such steps.

[214] Consequently, the plaintiffs have failed to establish that, based on the law and facts
before the court, the success of the wrongful interference with economic relations claim weighs
in their favour.
 - Page 42 -

(5) Conclusion on the s. 137.1(4)(a)(i) test

[215] For the above reasons, I conclude that the defamation claim is the only cause of action
upon which the plaintiffs have established a real prospect of success.

[216] Consistent with the approach in Levant, Bernier, and Mondal, I now address whether the
plaintiffs have established a real prospect of success that there are no valid defences to the
defamation claim, as the plaintiffs are required to do under s. 137.1(4)(a)(ii).

(iii) Have the plaintiffs established that there are grounds to believe that there are no
valid defences in the proceeding? (s. 137.1(4)(a)(ii)

[217] The defendants rely upon the following defences to the defamation claim:

(i) fair comment (all defendants rely on this defence),

(ii) qualified privilege (all of the councillor and trustee defendants rely on this
defence),

(iii) justification (the councillor defendants, Li Preti, and the Yahoo Defendants rely
on this defence),9

(iv) statutory immunity under s. 391 of the CTA (only the councillor defendants rely
on this defence), and

(v) responsible communication on a matter of public interest (only the Yahoo

Defendants rely on this defence).

[218] I rely on my analysis of the burden of proof as set out at paras. 141-42 above. In brief, for
each of the above defences, the burden is on the plaintiffs to establish, based on the applicable
law and the evidence before the court, that there is a “real prospect of success”, i.e., that it “tends
to weigh more in favour of the plaintiff” that none of the defences relied upon by the defendants
are valid.

[219] If the plaintiffs fail to meet that burden for any of the defences, then the anti-SLAPP
motion shall be granted and the proceeding dismissed.

[220] For the reasons that follow, I find that the plaintiffs have failed to establish a real prospect
of success that any defence is invalid.

[221] I address each of the defences below.

9
(although such a defence, if established, would apply to all defendants)
 - Page 43 -

(1) Fair comment

(a) The applicable law

[222] In WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 28, the court
set out the requirements to establish a defence of fair comment:

(i) The comment must be on a matter of public interest;

(ii) The comment must be based on fact;

(iii) The comment, although it can include inferences of fact, must be recognizable as
comment;

(iv) The comment must be one that any person could honestly make on the proved
facts; and

(v) The comment was not actuated by express malice.

[223] I review the applicable law for each of the five elements. In addition, I address the
context of the public debate from which the Impugned Statements arose.

i. The comment must be on a matter of public interest

[224] Similar to the approach of the court under s. 137.1(3), the defendant’s onus of showing
that the comment is on a matter of public interest is “relatively easy to discharge”, consistent
with the principle that “public interest” is a “broad concept”: WIC Radio, at para. 30.

ii. The comment must be based on fact

[225] The facts on which the comment is based need not be stated exhaustively or in detail.
Rather, the impugned expression must “explicitly or implicitly indicate, at least in general terms,
what are the facts on which the comment is being made”: WIC Radio, at para. 31.

[226] This element is also satisfied if the underlying facts are so notorious as to already be
understood by the audience: WIC Radio, at para. 34.

[227] The essence of the factual basis requirement is that there is a “sufficient launching pad for
the defence of fair comment”: WIC Radio, at para. 34. A requirement that the comment be
“supported by the facts” is not appropriate, as this could “create the potential for judicial
censorship of public opinion”: WIC Radio, at para. 39.

[228] If the factual foundation is unstated or unknown, or turns out to be false, the fair
comment defence is not available: WIC Radio, at para. 31.
 - Page 44 -

iii. The comment, although it can include inferences of fact,

must be recognizable as comment

[229] A comment is “generously interpreted”: WIC Radio, at para. 30, and includes a
“deduction, inference, conclusion, criticism, judgment, remark or observation which is generally
incapable of proof”: WIC Radio, at para. 26.

[230] Words “that may appear to be statements of fact may, in pith and substance, be properly
construed as comment”: WIC Radio, at paras. 26-27.

[231] Words that may appear to be statements of fact are recognizable as opinion “particularly
so in an editorial context where loose, figurative, or hyperbolic language is used … in the context
of political debate, commentary, media campaigns and public discourse”: WIC Radio, at para.
26.

[232] The plaintiffs submit that a statement that a person is homophobic, transphobic, or anti-
LGBTQ2S+ is a statement of fact, not a comment. I do not agree. The case law supports the
opposite conclusion.

[233] In Awan v. Levant, 2016 ONCA 970, 133 O.R. (3d) 401, leave to appeal refused, [2017]
S.C.C.A. No. 71, Feldman J.A. reviewed the issue of whether describing a person as an “anti-
Semite” was a statement of fact or opinion. Under the heading “Fact versus Comment – Calling
the Respondent an Anti-Semite”, Feldman J.A. found that such a statement was a comment, at
paras. 80-84:

The appellant submits that the trial judge erred by finding that calling the
respondent an anti-Semite in the context of the human rights proceeding,
because of his association with Dr. Elmasry, was a statement of fact that had
to be proved true, rather than a comment or opinion to which the defence of
fair comment could apply.

I accept this submission. Unlike in her fact versus opinion analysis of the "liar"
statements, the trial judge did not apply the reasonable person test, nor did she
consider whether the statement was a conclusion or judgment formed by the
appellant based on the respondent's association with Dr. Elmasry. She also did not
consider that it was stated in an editorial blog discussing a controversial matter of
public interest.

Applying that test, in my view, it is clear that a reasonable reader of the

appellant's blog would understand that the appellant was stating his view of
the respondent, based on his association with Dr. Elmasry and Dr. Elmasry's
public statements, including that all adult Israelis are legitimate targets of
violence. The respondent had numerous connections with the CIC, and
coordinated with the CIC and Dr. Elmasry to prepare for the meeting at Maclean's
and to bring the BCHRT complaint with Dr. Elmasry as a complainant.
 - Page 45 -

A similar conclusion that the characterization of comments as anti-Semitic

was a matter of opinion, was reached by the court in Shavluk v. Green Party
of Canada, 2010 BCSC 804, aff'd 2011 BCCA 286, at paras. 71-72. The
defendant characterized comments made by the plaintiff as anti-Semitic and
the court concluded the characterization was an opinion.

Calling someone prejudiced will normally be a conclusion or opinion based

on the person's conduct or statements. Justice Binnie observed in WIC that "the
cases establish that the notion of 'comment' is generously interpreted" (para. 30).
A defendant must then prove that the comment could be honestly expressed, that
it was based on true facts and that it met all the other criteria for the defence of
fair comment on a matter of public interest. The characterization as comment
gives the greatest scope for freedom of expression and the preservation of
Charter values, while giving full legal protection to the important interest of
individuals in their reputation as part of their dignity and self-worth. [Emphasis
added.]

[234] Similarly, the Court of Appeal in Levant held that the characterization of the plaintiff as
“a neo-Nazi sympathizer” was recognizable as comment: at paras. 64 and 65.

[235] The court in Bernier adopted a similar approach. The defendant in Bernier described the
plaintiff as a “racist”, “anti-Semitic”, and a “bigot”: at para. 25. MacLeod R.S.J. granted the anti-
SLAPP motion on the basis that “the plaintiff runs a significant risk that his action will succumb
to one of the defences of justification or fair comment”.10 MacLeod R.S.J. held, at para. 50:

A statement that a person is racist or a misogynist is a generalization or

conclusion that is not itself either true or false. In such cases, the question is
not whether the generalization is itself true, but whether it is a statement that
can be justified by proof of specific instances that support it. The test is
whether a reasonable person could reach the conclusion expressed based on
the underlying facts if those underlying facts are true. [Footnotes omitted;
emphasis added.]

[236] In Mondal, Morgan J. considered a tweet that “amounts to ‘an allegation of

homophobia’”: at para. 15. He held that the tweet was a comment, at para. 34, since:

[L]oose, figurative or hyperbolic language" [citing WIC Radio, at para. 26] of this
nature is often commentary dressed in the form of factual statement.

10
MacLeod R.S.J. also granted the anti-SLAPP motion and dismissed the action because the plaintiff did not meet
the weighing test under s. 137.1(4)(b).
 - Page 46 -

iv. The comment must be one that any person could honestly
make on the proved facts

[237] The comment must be one that any person – “however opinionated or prejudiced” or
“obstinate [in their] views” – could express based on the facts. It is not a high threshold: WIC
Radio, at paras. 40, 49-50.

[238] It is not required for the defendant to show that the facts “warranted” the comment or that
the comment was a “reasonable and proportional response to the stated or understood facts”:
WIC Radio, at paras. 28, 39.

v. The comment was not actuated by express malice

[239] The fair comment defence will only be defeated if subjective malice is the defendant’s
dominant motive for making the comment: WIC Radio, at para. 53.

vi. The fair comment defence in public debate

[240] Fair comment must be assessed in the context of public debate, where the plaintiff has
entered the fray and should reasonably expect a vigorous response.

[241] Malice is not established simply because a person uses strong language in a heated public
debate over a political issue. It is necessary to establish subjective intent. In Mondal, the court
considered the defence of fair comment in a defamation action arising out of the defendants’
tweets that the plaintiff was homophobic and transphobic. The court granted the anti-SLAPP
motion and dismissed the action. Morgan J. held, at paras. 40 and 41:

There is nothing indefensible in the Defendants’ communications about [the

plaintiff’s] tweets; and there is nothing said by the Defendants that, in context, is
harsher than, or is an overreaction to, the language of [the plaintiff’s] tweets
themselves. What the communications in issue amount to is a set of polar opposite
views on cultural politics, gender politics, and Politics with a capital ‘P’. As this
court stated in Bernier, at para 66, a stark difference in political views does not
make commentary malicious or undermine the fact that the commentary is fair
comment.

[The plaintiff] jumped into the turbulent river of Twitter commentary with
some vulgarly worded observations that touched a nerve with the
Defendants. He got it back as good as he gave it, and got wet in the process. In
the context of Twitter, there is every reason to believe that what [the defendants]
doled back to him was fair comment. [Emphasis added.]

[242] I now apply the above legal principles to the facts of the present case, under the standard
of proof required under Pointes.
 - Page 47 -

(b) Application of the law to the facts of the present case

[243] For this defence, I review each of the required elements of fair comment.

i. The comment must be on a matter of public interest

[244] As I discuss at paras. 125-39 above in my analysis of the public interest requirement
under s. 137.1(3), the comments in the Impugned Statements were on a matter of public interest.

[245] The comments by the Yahoo Defendants and in the January 11 Tweets were made in
relation to the public debate as to the decision of the TCDSB to remove the link to the LGBT
YouthLine website.

[246] The January 11 Tweets, as well as the January 14 Tweet, the Motion, the Joint Letter, and
the Press Conference Statements, were all made on the matter of public interest as to whether (i)
the City was failing to comply with the HRAP by spending public funds on advertising in a
newspaper that the councillors and trustees believed espoused homophobic, transphobic, and
anti-LGBTQ2S+ “ramblings”, and (ii) the protection of the interests of students, teachers, and
parents in the TCDSB.

[247] Consequently, this factor does not weigh in the plaintiffs’ favour.

ii. The comment must be based on fact

[248] The basis for the Impugned Statements was provided by all of the defendants, who
referred to the comments by Volpe in the Initial and YouthLine Articles as the source of their
comments. Those statements by the defendants “indicate, at least in general terms, what are the
facts on which the comment is being made”: WIC Radio, at para. 31.

[249] The issue before the court on this anti-SLAPP motion is not whether the plaintiffs are
homophobic, transphobic, or anti-LGBTQ2S+. The issue under the fair comment defence is
whether it weighs more in favour of the plaintiffs that the comments by Volpe could not provide
a basis in fact for the Impugned Statements.

[250] For the reasons that follow, I find that the plaintiffs failed to meet their burden.

[251] I do not repeat in this section all of the statements made by Volpe in the Initial Articles
challenging the decisions of those trustees on issues affecting the LGBTQ2S+ community at
TCDSB schools. Nor do I repeat the full detail of Volpe’s comments in the YouthLine Article.

[252] For ease of reference, I repeat the summary of Volpe’s comments from the Initial
Articles, as set out at para. 8 above:

(i) “(the LGBTQ2+) have taken aim to tear the [public Catholic school] system
down”;
 - Page 48 -

(ii) “(the LGBTQ2+)” are “militant radical, self-proclaimed advocates of ‘non-

religious’ value structure” who engage in “tactics [which] are insidious,
malicious and designed to tar and feather anyone who does not agree with
them”;

(iii) “(the LGBTQ2+)” have “seized control of due process to dictate an agenda no
self-respecting adult would foist on any child”, with that agenda having been put
forth by “former Premier Kathleen Wynne (an openly lesbian politician who left
her male husband for another woman) to implement. That’s her business”;

(iv) Volpe’s heterosexual “standards of sexual propriety” provide “yet another

safeguard against predators who would victimize” Volpe’s children;

(v) “the LBGQT2+ lobby [is] probably the most intolerant organization around”; and

(vi) “radical activists from the LGBTQ2+ community have launched what can only be
described as an all-out witch hunt to eradicate the Catholic ethic from Ontario’s
School system”.

[253] For ease of reference, I repeat the summary of Volpe’s comments from the YouthLine
Article, as set out at para. 10 above:

(i) “[LGBT YouthLine] is a recruitment site operated by a self-professed LGBTQ+

umbrella organization to attract children that operates province wide”;

(ii) supporters of LGBT YouthLine are “urban social terrorists [who] tear apart the
Catholic educational system with wild accusations and smear campaigns to
distract from the obvious”;

(iii) “anyone ‘trolling’ that [LGBT YouthLine] website should be considered a

pedophile”; and

(iv) LGBT YouthLine, and the trustees who supported it, were engaged in “insidious
and odious” conduct and were “someone, or some structure, that feigns the
interest of the most vulnerable – our children – then exposes their innocence to
exploitation by others”.

[254] All of the above comments support a basis in fact for the comment that the plaintiffs were
homophobic, transphobic, and anti-LGBTQ2S+.

[255] The plaintiffs submit that their comments in the Initial and YouthLine Articles
demonstrate no “fear” of the LGBTQ2S+ community, adopting a narrow definition of the terms
homophobic and transphobic. However, even on that narrow definition, Volpe’s statements in
the articles demonstrate such a fear and “well documented anti-LGBTQ+ views”.
 - Page 49 -

[256] By labelling the LGBT YouthLine site as a “recruitment site … to attract children”, by
describing supporters of the LGBT YouthLine as “urban social terrorists [who] tear apart the
Catholic educational system”, and by saying that anyone “trolling” the LGBT YouthLine website
“should be considered a pedophile”, those comments demonstrate a factual basis that the
plaintiffs feared the LGBTQ2S+ community.

[257] Similarly, the statements from the articles support a basis in fact that the plaintiffs were
homophobic, transphobic, and anti-LGBTQ2S+ if a broader definition is used. Such a broader
definition is discussed by Jonathan Cohen, in his article “More Censorship or Less
Discrimination? Sexual Orientation Hate Propaganda in Multiple Perspectives” (2000) 46
McGill L.J. 69, at p. 74:

Most experts agree that homophobia is more than a visceral fear of lesbians and
gay men; it is, for lack of a conclusive definition, an ideology of perceived sexual
deviance that operates to silence, subordinate and exploit anyone who violates
traditional gender roles.

[258] In addition to the comments summarized at paras. 252 and 253, other comments by Volpe
in the Initial Articles and in the YouthLine Article support such a broad definition, including
repeated references to the fact that Premier Wynne was “an openly lesbian politician who left her
male husband for another woman”, which have no relevance to the issues of Roman Catholic
doctrine, but only serve to insinuate perceived sexual deviance.

[259] The plaintiffs ask the court to find that it “weighs in their favour” that their comments
were only related to a public debate in which the plaintiffs challenged policies of the trustees on
the basis of a dispute over the extent of Roman Catholic doctrine. However, that factual finding
cannot be made based on the Initial Articles and the YouthLine Article.

[260] While the plaintiffs submit that they only engaged in a policy debate, the words in the
Initial and YouthLine Articles speak for themselves. Words matter.

[261] The plaintiffs did not limit themselves to a debate as to the scope of the Roman Catholic
doctrine. Instead, they used derogatory and prejudicial language about the LGBTQ2S+
community and those who support the inclusion of LGBTQ2S+ students at the TCDSB. The
articles traffic in homophobic tropes such as predation, pedophilia, and socially destructive
behaviour.

[262] It is not the role of the court on an anti-SLAPP motion to make a finding of fact as to
whether a plaintiff is homophobic, transphobic, or anti-LGBTQ2S+. The role of the court is only
to determine if the plaintiffs have met their burden to establish that it weighs in their favour that
there is no basis in fact for the impugned statements.

[263] For the reasons I discuss above, the plaintiffs do not meet this burden. There is a
“sufficient launching pad” for the Impugned Statements that Volpe and Corriere are
homophobic, transphobic, and anti-LGBTQ2S+.
 - Page 50 -

iii. The comment must be recognizable as comment

[264] For the reasons I discuss at paras. 229-36 above, the Impugned Statements that the
plaintiffs are homophobic, transphobic, and anti-LGBTQ2S+, or that Volpe has “well
documented anti-LGBTQ+ views”, are recognizable as comment on an objective basis. The
Impugned Statements are all examples of a deduction, inference, conclusion, remark or
observation based on the statements in the Initial and YouthLine Articles.

[265] Consequently, this issue does not weigh in the plaintiffs’ favour based on the applicable
law and the Impugned Statements.

iv. The comment must be one that any person could honestly
make on the proved facts

[266] The plaintiffs have not satisfied their burden to establish that it weighs in their favour that
the comments that the plaintiffs were homophobic, transphobic, and anti-LGBTQ2S+ were not
comments that any person could honestly make on the proved facts.

[267] I rely on my analysis at paras. 251-58 above. A person reading the Volpe comments in
the Initial and YouthLine Articles could reach the conclusion that the plaintiffs were
homophobic, transphobic, and anti-LGBTQ2S+, or that Volpe held “well documented anti-
LGBTQ+ views”.

[268] Further, the evidence is uncontested that others shared the same views as the defendants,
i.e., that the plaintiffs were homophobic, transphobic, and anti-LGBTQ2S+.

[269] Pizza Nova withdrew its advertisements from Corriere on November 17, 2021, after one
of its customers sent a tweet objecting to Pizza Nova advertising in a “homophobic &
transphobic publication” which circulated Volpe’s “homophobic & transphobic rants”.

[270] Pizza Nova agreed with that concern, as shown by its immediate response to the tweet,
withdrawal of advertising from Corriere, and its public statement that “the articles to which you
refer are not in accordance to our beliefs”, which were based on Pizza Nova being “a very
inclusive company”.

[271] LGBT YouthLine, an organization dedicated to assisting youth in the LGBTQ2S+

community, also reached the same conclusion as demonstrated in the LGBT YouthLine Press
Release (see para. 60 above).

[272] For the above reasons, the plaintiffs have not established that it weighs in their favour
that any person could not honestly make the Impugned Statements on the proved facts.
 - Page 51 -

v. The comment is not actuated by express malice

[273] Finally, as I discuss at paras. 185-91 above, there is no evidence of subjective malice of
the defendants, let alone evidence that any such malice (if it existed) was the dominant intent in
making the comments.

[274] To the contrary, the evidence, as I discuss above, is that all of the defendants were acting
in good faith, in support of their statutory and other duties, to best represent the public interest in
their roles as councillors or trustees and as a journalist publishing news on a website.

[275] Consequently, the plaintiffs have not established that it weighs in their favour that a court
would find the defendants’ comments were actuated by express malice, or that malice was the
dominant intent in making the Impugned Statements.

vi. The Impugned Statements were made in the context of

public debate

[276] As in Mondal, the Impugned Statements in the present case were made in the context of
public debate, initiated by the plaintiffs through the Initial and YouthLine Articles. The plaintiffs
raised a heated issue as to the conduct of the defendant trustees who supported certain policies
affecting the LGBTQ2S+ community at the TCDSB. The plaintiffs acknowledged in their
articles that they would likely be criticized as making homophobic comments, which is exactly
what happened when their comments raised such concerns.

vii. Conclusion on the fair comment defence

[277] For the above reasons, I find that the plaintiffs have failed to satisfy the court that there
are grounds to believe that the defence of fair comment is not valid. The weight of such a
position is not in favour of the plaintiffs.

[278] On this basis alone, I would grant the anti-SLAPP motions and dismiss the Action.
However, for purposes of completeness, I address the remaining defences raised by the
defendants as well as the weighing test under s. 137.1(4)(b).

(2) Qualified privilege

[279] This defence is relied upon by the defendant councillors and trustees.

(a) The applicable law

i. The scope of qualified privilege

[280] Qualified privilege applies to defamatory statements where “the person who makes a
communication has an interest or a duty, legal, social or moral, to make it to the person to whom
it is made, and the person to whom it is so made has a corresponding interest or duty to receive
it”: Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 143.
 - Page 52 -

[281] Qualified privilege is assessed on an objective basis. It may protect a communication

which is not based upon true facts—the defence attaches to the circumstances in which the
communication is made, rather than the communication itself: Botiuk v. Toronto Free Press
Publications Ltd., [1995] 3 S.C.R. 3, at para. 78.

ii. The protection of public officials and citizens on matters of

public interest

[282] Qualified privilege protects (i) statements of public officials on matters of public interest:
Lane v. Nanaimo-Ladysmith School District No. 68, 2006 BCSC 129, at para. 87, and (ii)
communications between community members and city officials on matters of public interest:
Lemire v. Burley, 2021 ONSC 5036, at para. 100.

[283] Public officials “have a duty to keep each other, the government and the public informed
on matters related to the public interest. [They] have an obligation to keep each other informed
on matters falling within their competence”: Lane, at para. 87.

[284] Qualified privilege protects the public statements of school board trustees made in the
public interest: Lane, at para. 87.

[285] The importance of preserving a municipal councillor’s freedom of expression was

discussed by the Supreme Court in Prud’homme c. Prud’homme, 2002 SCC 85, [2002] 4 S.C.R.
663, at para. 42:

In a defamation action against an elected municipal official, freedom of

expression takes on singular importance, because of the intimate connection
between the role of that official and the preservation of municipal
democracy. Elected municipal officials are, in a way, conduits for the voices
of their constituents: they convey their grievances to municipal government
and they also inform them about the state of that government … Their right
to speak cannot be limited without negative impact on the vitality of
municipal democracy… [Emphasis added.]

[286] A councillor’s freedom of expression is “a crucial instrument for achieving effective

participation in and transparent management of municipal affairs”: Prud’homme, at para. 53

[287] Qualified privilege attaches to statements to the press when an elected representative has
the duty to keep constituents informed and the constituents have a reciprocal interest in knowing
a position. In Stopforth v. Goyer (1979), 23 O.R. (2d) 696 (C.A.), the court held:

In my opinion the electorate, as represented by the media, has a real and bona
fide interest in the demotion of a senior civil servant for an alleged dereliction
of duty. It would want to know if the reasons given in the House were the real and
only reasons for the demotion. The appellant had a corresponding public duty
and interest in satisfying that interest of the electorate. Accordingly, there
being no suggestion of malice, I would hold that the alleged defamatory
 - Page 53 -

statements were uttered on an occasion of qualified privilege. [Emphasis

added.]

(see also Lane, at para. 91)

[288] Similarly, in Parlett v. Robinson, 1986 CanLII 929 (B.C.C.A.), leave to appeal refused,
[1986] S.C.C.A. No. 322, the court held that statements by an elected member of Parliament at a
news conference and in an interview were protected by qualified privilege. The court held, at
para. 31:

In addition to the duty of the defendant to declare his concern in this matter, it
appears to me that the electorate in Canada have an interest in knowing
whether the administration of the Correctional Service is being properly
conducted by the officials in the Department of the Solicitor General.
[Emphasis added.]

[289] In Parlett, the B.C. Court of Appeal reversed the decision of the trial judge who
attempted to distinguish Stopforth on the basis that in that case, the statement repeated to the
press had initially been made in Parliament. The court held, at para. 40:

In my respectful opinion, the learned trial judge erred in seeking to distinguish the
decision in Stopforth on so narrow a basis. I fail to appreciate why a statement
would enjoy qualified privilege when made to the media if first the statement was
made in the House of Commons where it would enjoy an absolute privilege. It is
not the making of the statement in the House of Commons that creates the
interest of the electorate but rather the subject matter of the statement. Thus
if the Member of Parliament has a duty to ventilate the subject matter and
the electorate has an interest in knowing of the matter, then the only remaining
question is whether or not, in the circumstances, the publication “to the world”
was too broad. [Emphasis added.]

[290] Communications from constituents to city representatives are protected where the
constituent has a “personal, social and civic interest” in providing information to the city, and the
city has a corresponding “civil and civic interest” in receiving it: Lemire, at para. 100.

iii. Limits on the scope of qualified privilege

[291] The communicated information must be “reasonably appropriate to the legitimate

purposes of the occasion”: Bent, at paras. 230-31.

[292] Once qualified privilege is established, a plaintiff can defeat the defence by
demonstrating that the defendant exceeded the limits of the privileged occasion: Bent, at para.
121.

[293] To maintain privilege over protected communications, a defendant “must communicate

appropriate information to appropriate people”: RTC Engineering Consultants Ltd. v. Ontario
 - Page 54 -

(2002), 58 O.R. (3d) 726 (C.A.), at para. 18. However, a “person speaking on a privileged
occasion should not be regarded as a tightrope walker without a safety net, with the judge
waiting underneath with bated breath hoping for a tumble”: Bent, at paras. 230-31.

[294] By way of example, in Parlett, the court held, at para. 41:

In my opinion the statements to the media and on the television programme

which were reported in newspapers and through the media cannot be said to
have been unduly wide. That is because the group that had a bona fide interest
in the matter was the electorate in Canada. Hence the privilege was not lost.
[Emphasis added.]

[295] Malice can vitiate the defences of qualified privilege. The onus is on the plaintiff to
demonstrate there is a basis in law and fact that malice was the “dominant motive” of the
impugned expressions, or that the expressions were made with reckless indifference to their
truth: Bent, at paras. 121, 246.

[296] Proving malice is “not a burden that is easily satisfied”: Bent, at para. 246, and is an
inference that courts should be slow to draw: Horrocks v. Lowe, [1975] A.C. 135 (H.L.), at p.
150.

[297] The mere fact that a defendant dislikes a plaintiff, or “was indignant at what he believed
to be the plaintiff's conduct and welcomed the opportunity of exposing it”, does not establish
malice: Horrocks, at p. 151. Nor is it sufficient that a defendant knows their defamatory
publication will injure the plaintiff; the defendant’s desire to injure the plaintiff must have been
the dominant motive for the publication: Horrocks, at p. 149.

(b) Application of the law to the facts of the present case

[298] Under the Pointes test, the plaintiffs are required to establish a real prospect of success
that the court would find the qualified privilege defence to be invalid, i.e., that a finding of
invalidity of the qualified privilege defence weighs in favour of the plaintiffs, based on the
applicable law and evidence.

[299] For the reasons that follow, I find that the plaintiffs have failed to meet that burden.

[300] I first address the councillors’ defence of qualified privilege and then consider the
trustees’.

i. The councillors’ defence of qualified privilege

a. The scope of the HRAP

[301] The HRAP applies to elected officials and all City contracts. The HRAP provides:
 - Page 55 -

The City of Toronto will not tolerate, ignore, or condone discrimination or

harassment and is committed to promoting respectful conduct, tolerance and
inclusion.

[302] The HRAP also mandates that all contracts with third party individuals and organizations
delivering services to the City must include a signed copy of the Declaration and are subject to
contract provisions regarding consequences for non-compliance. In the present case, the City was
using taxpayers’ money to purchase advertisement space in Corriere.

b. The duties of the councillors

[303] The defendant councillors, in their capacity as elected City officials, had an interest
and/or duty to ensure that the City, through its advertising using public funds, did not tolerate,
ignore, or condone what the councillors reasonably viewed as the plaintiffs’ acts of
discrimination and harassment against the LGBTQ2S+ community. This duty was reflected at
the outset of the Motion in the councillors’ statement that their motivation in bringing it was to
act in accordance with their duty under the HRAP.

[304] City Council had a corresponding interest and/or duty under the HRAP and the CTA to
receive the information contained in the Motion.

[305] The evidence is that the impugned statements in the Tweets, Motion, and Press
Conference Statements were made pursuant to the councillors’ duty to represent and inform their
constituents, with the obligation of the City to address those concerns and the interest of the
electorate in learning of such concerns.

[306] Consequently, the plaintiffs have not established a real prospect of success that the
impugned expressions in the Tweets, Motion, and Press Conference Statements were not made
on a privileged occasion.

c. The scope of the communication

[307] The evidence supports the defendants’ submission that the councillors’ Impugned
Statements were made in a manner consistent with the scope of the occasion. The Motion was
directed to the City Council. The Press Conference Statements were made in the context of a
local press conference held on YouTube due to the COVID-19 pandemic.

[308] The evidence supports a finding that the scope of the communication was appropriate.
The defendant councillors alerted City councillors about the concerns through the Tweets,
Motion and the Press Conference Statements, so that the City could take the necessary steps to
address what the councillors viewed as homophobic, transphobic, and anti-LGBTQ2S+ conduct
by one of the newspapers in which the City spent public funds for advertising. The defendant
councillors raised with the appropriate people (including the media) their concern that
advertising in the Corriere conflicted with the HRAP.
 - Page 56 -

[309] Consequently, the plaintiffs have not established a real prospect of success that the
impugned expressions in the Tweets, Motion, and Press Conference Statements exceeded the
scope of the qualified privilege.

d. Absence of evidence of malice

[310] The evidence of the councillor defendants is that they made their comments in good faith
and did not intend to injure the plaintiffs. They brought attention to the YouthLine Article and
the plaintiffs’ publications because they believed it was incumbent on them as City councillors to
bring awareness to what they viewed as discrimination and harassment.

[311] City councillors are not obligated to remain neutral in light of information that affects
their constituents. The fact that they took a strong stance is not evidence of malice.

[312] Consequently, the plaintiffs have not established a real prospect of success that any
qualified privilege in the Tweets, Motion, and Press Conference Statements would be vitiated by
proof of malice, let alone that it was the dominant intent in making the statements.

ii. The trustees’ defence of qualified privilege

a. The public interest of the expression

[313] The issues raised by the defendant trustees in the Joint Letter and Press Conference
related to matters of public interest, concerning the public use of taxpayer funds to purchase
advertising in a newspaper which the trustees believed was causing harm to LGBTQ2S+
students, families and teachers through views which the trustees, in good faith, believed were
discriminatory.

[314] The Joint Letter and Press Conference Statements fell within the trustees’ competence as
elected officials communicating with other elected officials on a matter falling within their
shared competencies. Further, the trustees had a duty to their constituents to ensure they knew
the trustees’ position and the actions being taken, so that the constituents understood how they
were being represented by their officials.

[315] The public interest also arose under the trustees’ own duties pursuant to the Education
Act, the TCDSB Code of Conduct, and other relevant policies, to promote an inclusive school
environment, ensure safe schools, and prevent bullying.

[316] The City councillors had a duty to consider the trustees’ concerns. Further, the electorate
had a “real and bona fide” interest in receiving the information.

[317] All of the trustees had a personal, social and civic interest in providing information to
City Council about the plaintiffs’ reporting to “advocate on behalf of the 2SLGBTQ community,
our students, our staff, our parents, our families and those residents in the City of Toronto”, as
Rizzo stated in her cross-examination. The trustees reasonably and honestly believed that they
had information relevant to the motion before City Council, and had a duty to provide it to
 - Page 57 -

Council. City Council had a civil and civic interest in receiving information germane to the
motion before it.

[318] Consequently, the plaintiffs have not established a real prospect of success that the
impugned expressions in the Joint Letter and Press Conference Statements were not made on a
privileged occasion.

b. The scope of the communication

[319] The Joint Letter was addressed to Mayor Tory and City Council and submitted to the City
Clerk—the individuals who had an interest in receiving it. The Press Conference Statements
were made in the context of a press conference about the Motion. City councillors or interested
community members could watch and be informed on the trustees’ experience with Corriere at
the TCDSB.

[320] There is no evidence that the statements did not contain appropriate information or were
not provided to appropriate people. The information was relevant to the Motion before City
Council. That information was provided to assist City Council in determining the Motion before
it and to promote a positive and inclusive environment at the TCDSB.

[321] The trustees did not exceed the privilege. They did not publish the Joint Letter to a wider
audience than was appropriate or necessary.

[322] Consequently, the plaintiffs have not established a real prospect of success that the
impugned expressions in the Joint Letter and the Press Conference Statements exceeded the
scope of the qualified privilege.

c. Absence of evidence of malice

[323] There is no evidence that any of the trustees made the Impugned Statements out of
malice, let alone a “dominant motive” of malice, or that the statements were made with reckless
indifference to their truth.

[324] The plaintiffs submit that malice can be inferred because the trustees knew that the effect
of the Joint Letter and Press Conference Statements would be to “censor” Corriere and “attack”
the plaintiffs’ Charter rights. For the reasons I discuss at paras. 138, 185-91 and 209-12 above, I
reject that submission.

[325] Consequently, the plaintiffs have not established a real prospect of success that any
qualified privilege in the Joint Letter and Press Conference Statements would be vitiated by
proof of malice, let alone that it was the dominant intent in making the statements.

iii. Conclusion on the defence of qualified privilege

[326] As I discuss above, it is not the role of the court on an anti-SLAPP motion to decide if a
defence will succeed at trial. The only issue is whether the plaintiff has satisfied the court that
 - Page 58 -

based on the applicable law and the evidence before the court, it weighs in the plaintiffs’ favour
that the defence would be found to be invalid at trial.

[327] For the above reasons, I find that the plaintiffs have failed to establish that there are
grounds to believe that the defence of qualified privilege is not valid. The weight of such a
position is not in favour of the plaintiffs.

(3) Justification

[328] The defence of justification applies only if the defamatory statement that the plaintiffs
were homophobic, transphobic, and anti-LGBTQ2S+ (or that Volpe had well documented anti-
LGBTQ+ views) are found to be statements of fact rather than comment. For the reasons that I
review in my analysis of the fair comment defence at paras. 229-36 and 264 above, I do not find
that the Impugned Statements are facts.

[329] However, if the plaintiffs could establish that the Impugned Statements were facts, then
the councillor defendants, Li Preti, and the Yahoo Defendants rely on the defence of justification
and submit that the plaintiffs have not established a real prospect of success that the justification
defence is invalid. Put differently, these defendants submit that the likelihood that a court would
reject the justification defence does not weigh more in favour of the plaintiffs.

[330] Further, I note that if a justification defence were found to be valid (assuming the
Impugned Statements were facts), then it would apply to all defendants, not just those that raise it
on their anti-SLAPP motions, since the defence arises from the assessment of the plaintiffs’
statements.

[331] On an anti-SLAPP motion, it is not the role of the court to determine whether a defence
of justification would be successful at trial. Consequently, the court does not determine whether
the plaintiffs are homophobic, transphobic, or anti-LGBTQ2S+ or whether Volpe held well
documented anti-LGBTQ+ views. However, the court must consider the evidence to determine
whether the plaintiffs have established that such a finding at trial weighs in their favour. I set out
that analysis below.

(a) The applicable law

[332] The justification defence is established if the defendant can prove the truth of the “sting”,
or main thrust, of the defamatory charge, and the publication is “substantially” true in the natural
and ordinary meaning of the words used: Bent, at para. 107.

[333] A defendant need not show the literal truth of the precise statement made, and it is
immaterial that there are slight inaccuracies in the details of the expression or with respect to
items of secondary importance: Raymond E. Brown, Brown on Defamation: Canada, United
Kingdom, Australia, New Zealand, United States, loose-leaf, 2nd ed (Toronto: Thomson Reuters,
2016), at 10-1, 10-47 to 10-50, 10-59; DEI Films Ltd. v. Tiwari, 2018 ONSC 4423, at para. 30.
 - Page 59 -

[334] The justification defence can also consider statements made after the impugned
statements: Downard, at paras. 6.35 and 6.36.

(b) Application of the law to the facts of the present case

[335] At paras. 252-53 above, I review excerpts of the statements made by Volpe and published
in Corriere. It is these same excerpts that would be relevant to a defence of justification.

[336] Based on those statements, the plaintiffs have not established that it weighs more in their
favour that a justification defence would be invalid.

[337] In brief, the plaintiffs’ statements in the Initial and YouthLine Articles could support a
finding at trial of the truth of the defendants’ description of (i) the plaintiffs as homophobic,
transphobic, and anti-LGBTQ2S+ and (ii) Volpe having “well documented anti-LGBTQ+
views”.

[338] Volpe’s comments referring to “the LGBTQ2+” as “advocates of ‘non-religious’ value

structure”, who “engage in tactics which are insidious, malicious”, his references to “an openly
gay politician who left her male husband for another woman”, and his suggestion that Volpe’s
views of “sexual propriety” would “safeguard against predators who would victimize” Volpe’s
children, are all comments that a court could rely upon to find that the plaintiffs were
homophobic, transphobic, and anti-LGBTQ2S+.

[339] Similarly, comments describing the LGBT YouthLine as a “recruitment site” “to attract
children”, which would only be viewed by a “pedophile”, and “exposes [our children’s]
innocence to exploitation by others”, can also be viewed by a court as establishing the truth of
the sting.

[340] For the above reasons, if the Impugned Statements are found to be facts, the plaintiffs
have not met their burden under s. 137.1(4)(a)(ii) to establish that there is no real prospect of
success for a justification defence.

(4) Section 391 of the CTA

[341] This defence is only raised by the councillor defendants.

(a) The applicable law

[342] Section 391 of the CTA provides that no proceeding for damages or otherwise shall be
commenced against a member of City Council for any act done in good faith in the performance
or intended performance of a duty.

[343] In Hotspot Auto Parts v. Thompson (20 January 2022), Toronto, CV-20-646309 (Ont.
S.C.), the court held that the plaintiffs failed to establish a real prospect of success that the s. 391
defence to the plaintiff’s defamation claim was invalid. In Hotspot, the defendant councillor
 - Page 60 -

successfully brought an anti-SLAPP motion, relying on several defences, including s. 391 of the
CTA. The court held, at paras. 49-51:

The Defendant argues that the remarks were made in the good faith performance
of his duties and there is no evidence of malice or bad faith. The Plaintiff takes the
position that the defence of statutory immunity has no reasonable prospect of
success because Councillor Thompson’s expression was not made in good faith.

Councillor Thompson was in attendance at the SCC meeting in his capacity as a

City Councillor. His responsibilities included receiving the deputation from the
Legion and responding to their concerns in his capacity as a City Councillor. The
Integrity Commissioner determined that Councillor Thompson was conducting his
duties at the meeting in accordance with the Code of Conduct and found there was
no basis for Mr. Nersesian’s complaint.

I am satisfied that on the evidence before me that the Plaintiff has not established
that the defence of statutory immunity has no reasonable prospect of success.

[344] In McLaughlin v. Maynard, 2018 ONSC 3605, at paras. 24-26, the court similarly held
that a councillor performing his duties in good faith was statutorily protected from a defamation
claim.

(b) Application of the law to the facts of the present case

[345] The plaintiffs submit that immunity under s. 391 cannot apply since there can be no good
faith of councillors who sought to prevent advertising in a newspaper in order to censor the
newspaper or infringe the plaintiffs’ Charter freedoms. However, as I discuss at paras. 185-91
above, there is no evidence that the councillors acted in bad faith by raising the issue of spending
public taxpayer dollars in a publication which the councillors believed to be inconsistent with the
HRAP and the interests of their constituents, including the LGBTQ2S+ community.

[346] The councillors have the right, and the obligation, to inform their electorate as to issues
which can affect the interests of the community. Statements that raise concerns of homophobic
attacks in relation to LGBTQ2S+ policy disputes in the TCDSB are matters on which councillors
should be expected to speak.

[347] The councillor defendants’ expressions were made in good faith in the performance of
their duties as City councillors, and there is no evidence of malice or bad faith that vitiates the
protection of s. 391 of the CTA.

[348] In any event, no censorship was sought of Corriere. The newspaper was only asked to
sign a Declaration and provide an undertaking to comply with the HRAP. Corriere and Volpe
were fully entitled to maintain their campaign that Roman Catholic doctrine was contrary to
policies supported by the defendant trustees, without using language that raised concerns under
the HRAP, which provides that the City “will not tolerate, ignore, or condone discrimination or
harassment and is committed to promoting respectful conduct, tolerance and inclusion”.
 - Page 61 -

[349] Consequently, the plaintiffs have not established that there is a real prospect of success
that the defence of statutory immunity would not be valid.

(5) Responsible communication

[350] This defence is only relied upon by the Yahoo Defendants.

(a) The applicable law

[351] In Grant v. Torstar, 2009 SCC 61, [2009] 3 S.C.R. 640, the court set out the elements of
the defence of responsible communication, at para. 126:

The defence of public interest responsible communication is assessed with

reference to the broad thrust of the publication in question. It will apply where:

A. The publication is on a matter of public interest, and

B. The publisher was diligent in trying to verify the allegation, having

regard to:

(a) the seriousness of the allegation;

(b) the public importance of the matter;

(c) the urgency of the matter;

(d) the status and reliability of the source;

(e) whether the plaintiff's side of the story was sought and accurately
reported;

(f) whether the inclusion of the defamatory statement was justifiable;

(g) whether the defamatory statement’s public interest lay in the fact
that it was made rather than its truth (“reportage”); and

(h) any other relevant circumstances.

(b) Application of the law to the facts of the present case

[352] The plaintiffs’ claim is based on the statement in the Yahoo Article that Volpe has “well
documented anti-LGBTQ+ views”. On the evidence, it does not weigh in the plaintiffs’ favour
that a court would find the responsible communication defence invalid. To the contrary, the
evidence supports the validity of such a defence.

[353] I summarize the relevant evidence on this issue as follows:

 - Page 62 -

(i) The plaintiffs acknowledge that the Yahoo Article was on a matter of public
interest relating to the TCDSB decision to remove the LGBT YouthLine link from
the TCDSB website;

(ii) The reporting was on an issue of public importance. The public debate and
controversy relating to the TCDSB’s decision to remove LGBT YouthLine as a
resource from its website was a matter of public importance, as evidenced by the
immediate and vocal reaction and criticism it sparked from many members of the
public, as well as LGBT YouthLine’s long and established history as a valuable
resource for LGBTQ2S+ youth in Ontario. The issue directly affected the
resources available to the LGBTQ2S+ student community in the TCDSB;

(iii) There was urgency in reporting the matter. The Yahoo Article reported on a
public debate occurring in real time on January 11 and 12, 2021 following
publication of the LGBT YouthLine Press Release on January 11, 2021. The
LGBT YouthLine was reinstated on the TCDSB’s website on January 13, 2021;

(iv) Di Filippo reviewed and relied on publicly available articles from reputable news
outlets, including articles written by Volpe, that set out Volpe’s views, often in his
own words;

(v) The Yahoo Article describes, quotes from, and provides links to the YouthLine
Article, as well as blog posts written by a retired educator and principal Volpe
cited favourably in his article, in order to set out Volpe’s criticism of LGBT
YouthLine and allow readers to consider Volpe’s views for themselves; and

(vi) The YouthLine Article and Volpe’s views on LGBTQ+ issues at the TCDSB and
otherwise were relevant to the story because, according to LGBT YouthLine, the
YouthLine Article was specifically referenced by the TCDSB when it informed
LGBT YouthLine of its decision.

[354] Based on the above evidence and the applicable law, the plaintiffs have not established
that there is a real prospect of success that the defence of responsible communication would not
be valid.

(6) Conclusion on defences

[355] For the above reasons, I find that the plaintiffs have failed to meet their burden under s.
137.1(4)(a)(ii) for any of the defences relied upon by the defendants. On the basis of the law and
the evidence before the court on the anti-SLAPP motions, the plaintiffs have not established that
a finding that the invalidity of any of the defences (let alone all of the defences as the plaintiffs
are required to establish) “tends to weigh more in favour of the plaintiff”.
 - Page 63 -

Step 4: Is the harm suffered as a result of the Impugned Statements sufficiently serious
that the public interest in permitting the Action to continue outweighs the public
interest in protecting the Impugned Statements? (s. 137.1(4)(b))

[356] Given my findings that the plaintiffs have failed to meet their burden under s.
137.1(4)(a)(ii) to establish a real prospect of success that there are no valid defences, it is not
necessary to consider the weighing test.

[357] Nevertheless, I address the issue below in the event the plaintiffs are found to have met
their burden under s. 137.1(4)(a)(ii).

(i) The applicable law

(1) General principles

[358] Under s. 137.1(4)(b), the plaintiff must satisfy the court that the harm to be or have been
suffered by the plaintiff as a result of the defendant’s expression is sufficiently serious that the
public interest in permitting the proceeding to continue outweighs the public interest in
protecting that expression.

[359] The court in Pointes held that “the final weighing exercise under s. 137.1(4)(b) is the
fundamental crux of the analysis: as noted repeatedly above, the APR and the legislative debates
emphasized balancing and proportionality between the public interest in allowing meritorious
lawsuits to proceed and the public interest in protecting expression on matters of public interest”:
at para. 18 (see also paras. 30, 48, and 61). Côté J. added, at para. 82:

This weighing exercise is the crux or core of the s. 137.1 analysis, as it captures
the overarching concern of the legislation, as evidenced by the legislative history.
It accordingly should be given due importance by the motion judge in
assessing a s. 137.1 motion. [Emphasis added.]

[360] The weighing exercise “serves as a robust backstop for motion judges to dismiss even
technically meritorious claims if the public interest in protecting the expression that gives rise to
the proceeding outweighs the public interest in allowing the proceeding to continue”: at para. 62.
Côté J. added, at para. 81:

Fundamentally, the open-ended nature of s. 137.1(4)(b) provides courts with

the ability to scrutinize what is really going on in the particular case before
them: s. 137.1(4)(b) effectively allows motion judges to assess how allowing
individuals or organizations to vindicate their rights through a lawsuit — a
fundamental value in its own right in a democracy — affects, in turn,
freedom of expression and its corresponding influence on public discourse
and participation in a pluralistic democracy. [Emphasis added.]

[361] The court is not engaging in a “balancing” exercise. Rather, s. 137.1(4)(b) sets out a
“weighing” test to determine whether the plaintiff’s harm is sufficiently serious that the public
 - Page 64 -

interest in permitting the proceeding to continue “outweighs” the public interest in protecting
that expression. In Pointes, the court held, at para. 66:

Here, the provision expressly requires that one consideration "outweig[h]"

the other. I am of the view that this is substantively different than if the
statute had required that the two considerations be balanced against one
another. The difference can be illustrated by the following quantification of
weighing and balancing: where one factor must outweigh the other, the ratio
between the two must be at least 51/49; in contrast, where one factor must be
balanced against the other, a ratio of 50/50, or even 45/55, might be sufficient for
a judge to rule in favour of the former. The word "outweighs" necessarily
precludes such a conclusion. [Italics and underlining in original; emphasis added.]

(2) The onus of proof under s. 137.1(4)(b)

[362] Because s. 137.1(4)(b) requires that the plaintiff “satisfies” the court on the weighing test,
the burden must be met on a balance of probabilities: Pointes, at para. 82:

In conclusion, under s. 137.1(4)(b), the burden is on the plaintiff — i.e. the

responding party — to show on a balance of probabilities that it likely has
suffered or will suffer harm, that such harm is a result of the expression
established under s. 137.1(3), and that the corresponding public interest in
allowing the underlying proceeding to continue outweighs the deleterious
effects on expression and public participation. [Italics in original; emphasis
added.]

(3) The requirement to establish a causal connection between the defamation

and actual harm

[363] The plaintiff must “show the motion judge a causal connection between the defamation
and actual harm that is disproportionate to the harm the statutory provision is intended to protect
against”: Bernier, at para. 70. Consequently, the plaintiff must be able to demonstrate both (i) the
existence of harm and (ii) causation: Pointes, at para. 68.

[364] While a “fully developed damages brief” is not required under s. 137.1(4)(b), “[t]his does
not mean that the harm pleaded by the plaintiff should be taken at face value or that bald
assertions are sufficient”. The plaintiff must provide evidence for the court to draw an “inference
of likelihood in respect of the existence of the harm and the relevant causal link”: Pointes, at
para. 71.

[365] Harm to the plaintiff can refer to non-monetary harm related to the preservation of one’s
good reputation or one’s personal privacy, which has inherent value beyond the monetary value
of a claim and can, in the appropriate circumstances, be considered in assessing the harm caused
to the plaintiff by the defendant’s expression: Pointes, at para. 69.
 - Page 65 -

[366] However, a bald assertion that a plaintiff’s reputation has been damaged does not satisfy
the court as to the level of such damage. In Levant, the plaintiff asserted damage to his
reputation. The court held, at paras. 67-68:

Some level of damage to Mr. Levant's reputation can be presumed from the
defamatory statement. However, that is not sufficient for the purposes of s.
137.1(4)(b).

The presumption of damages in a defamation action involving an individual

only goes so far. While it may be sufficient to establish the existence of
damages, it is not sufficient to establish the level of those damages. [Emphasis
added.]

(4) The weighing test considers whether the defendants’ impugned

statements arose in the context of a public debate

[367] The court in Levant held that the weighing test must also take into account whether the
plaintiff “injects themselves into public debate over a contentious topic” in which case “they
must expect that they are going to be met with some measure of rebuttal, perhaps forceful
rebuttal, by those who take an opposite view”. The court held, at paras. 70 and 71:

Finally, on this [weighing] point, when a person injects themselves into public
debate over a contentious topic, they must expect that they are going to be
met with some measure of rebuttal, perhaps forceful rebuttal, by those who
take an opposite view. The case of WIC Radio is an example of that reality. The
evidence demonstrates that the appellants quite readily inject themselves into
the public debate on many of these types of issues. Indeed, there is evidence
that they consider that to be part of the rationale for their existence. The
appellants should not be surprised when they are then met with a response -
even a very forceful response. While such responses do not justify crossing
the line into defamatory speech, they are a factor to consider in assessing the
level of damages that the defamatory aspect of the response may create. As
Binnie J. said in WIC Radio, at para. 4:

We live in a free country where people have as much right to express

outrageous and ridiculous opinions as moderate ones.

As I concluded with respect to the Al Jazeera motion, the appellants have failed
to lead evidence of any specific harm or any level of serious harm. Balanced
against whatever harm may be presumed, is the public interest in protecting
freedom of expression and in having robust debates on matters of public
importance. I agree with the motion judge that the appellants failed to establish,
in the words of s. 137.1(4)(b), that "the harm likely to be or have been suffered by
the [appellants] as a result of [the respondent's] expression is sufficiently serious
that the public interest in permitting the proceeding to continue outweighs the
public interest in protecting that expression". [Emphasis added.]
 - Page 66 -

(5) The weight to be attached to the defendants’ expression

[368] In weighing the harm under s. 137.1(4)(b), the courts should consider the nature of the
defendants’ public expression which is impugned in the defamation claim. In Pointes, the court
held, at para. 77:

The weighing exercise under s. 137.1(4)(b) can thus be informed by this

Court's s. 2(b) Canadian Charter of Rights and Freedoms jurisprudence,
which grounds the level of protection afforded to expression in the nature of
the expression (R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 181). For
example, the inquiry might look to the core values underlying freedom of
expression, such as the search for truth, participation in political decision
making, and diversity in forms of self-fulfilment and human flourishing
(Sharpe, at para. 182; Thomson Newspapers Co. v. Canada (Attorney General),
[1998] 1 S.C.R. 877, at para. 24). The closer the expression is to any of these
core values, the greater the public interest in protecting it. [Emphasis added.]

[369] Similarly, the Court of Appeal held in Armstrong v. Corus Entertainment Inc., 2018
ONCA 689, 143 O.R. (3d) 54, at para. 90:

Against what I would characterize as modest evidence of harm or potential harm

to Mr. Armstrong stands the very strong public interest in promoting freedom
of expression by candidates during the electoral process. The public expects
and benefits from vigorous debate among candidates. The rhetoric can become
personal and overly zealous. No doubt, candidates have in the past, and will in the
future, step over the line between strongly stated opinions and defamatory
comments. However, the message to be taken from the enactment of s. 137.1 is
that not every foot over the defamatory foul line warrants dragging the
offender through the litigation process. By enacting s. 137.1, the legislature
acknowledged that, in some circumstances, permitting the wronged party to
seek vindication through litigation comes at too high a cost to freedom of
expression. [Emphasis added.]

(6) The plaintiffs’ reliance on the decision in Neufeld

[370] The plaintiffs rely on the decision of the B.C. Court of Appeal in Neufeld v. Hansman,
2021 BCCA 222, 50 B.C.L.R. (6th) 217, leave to appeal granted, 2022 CanLII 693 (S.C.C.).

[371] In Neufeld, the court held that the weighing under s. 137.1(4)(b) should not only consider
the evidence of harm suffered by the plaintiff (as set out in s. 137.1(4)(b)), but should also
consider the “potential chilling effect” that dismissing the defamation action would have on the
“future expression by others who might wish to engage in debates on this or other highly charged
matters of public interest”. The court reversed the trial judge, concluding, at paras. 65 and 68:

The judge in the present case did not consider the potential chilling effect on
future expression by others who might wish to engage in debates on this or other
 - Page 67 -

highly charged matters of public interest—that is, the risk that people would
withdraw or not engage in public debate for fear of being inveighed with negative
labels and accusations of hate speech with no opportunity to protect their
reputation.

Defamatory comments that accuse someone of committing hate speech can inflict
serious reputational harm. The judge's error was in failing to consider the
collateral effect that preventing Mr. Neufeld from defending himself from such
serious accusations could have on other individual's willingness to express
themselves on issues of public interest in future.

[372] The defendants submit that the weighing approach adopted in Neufeld is inconsistent with
the approach set out in Pointes, which requires a weighing of the harm caused to the plaintiff,
against the countervailing factor in protecting the defendant’s expression. The defendants submit
that there is no basis in Pointes for the court to consider the effect on the expression of others if
the plaintiff is not permitted to bring the defamation suit.

[373] The defendants rely on the decision in Levant. The defendants submit that when
considering the Pointes test with a media organization plaintiff and a personal plaintiff, the court
in Levant did not weigh any purported chilling effect on future expression by other people if the
action was dismissed, but instead weighed the evidence of harm to the plaintiffs against the
“public interest in protecting [the defendants’] freedom of expression and in having robust
debates on matters of public importance”: at para. 71.

[374] The defendants submit that the approach in Levant is consistent with the purpose of the
anti-SLAPP legislation to serve as a defence to a defamation claim.

[375] For the purposes of these reasons, it is not necessary to decide whether the approach in
Neufeld is consistent with the principles in Pointes or the application of the weighing test under
s. 137.1(4)(b) in Levant. Even if the court accepted the plaintiffs’ submission in the present case
and followed the approach in Neufeld, there is no evidence that the freedom of expression of
“others” is at any risk.

[376] To the contrary, as in Levant, the plaintiffs and others are free to (and the plaintiffs have
continued to) raise concerns about policies concerning issues affecting the LGBTQ2S+
community in the TCDSB. The plaintiffs and others can criticize the conduct of the trustees (and
councillors) who support such policies. None of the defendants have taken any steps to prevent
the plaintiffs or others from entering into the debate.

(ii) Application of the law to the facts in the present case

[377] I consider the weighing test under s. 137.1(4)(b) on the basis of the applicable legal
factors I discuss above: (i) the evidence of damages (including the requirement to establish a
causal connection between the defamation and actual harm) against (ii) the weight to be attached
 - Page 68 -

to the defendants’ expression, taking into account that the Impugned Statements arose in the
context of public debate.

(1) Little or no evidence of damages

[378] There is no evidence of any advertising contracts that were cancelled or breached because
of the Impugned Statements. At paras. 97-98 above, I set out the assertions by Volpe as to
damages. However, those assertions are not supported by the evidence. In particular:

(i) Volpe states that Corriere had “advertising arrangements that amount to contracts
with the City and others”, but provides no evidence of these contracts. The
evidence of Wong-Tam that advertising was “buy-as-we-need” is more consistent
with the lack of evidence of any alleged “advertising arrangement” with the City;
and

(ii) Volpe states that “[a]dvertising contracts have been cancelled”, but provides no
evidence of any such advertising contracts.

[379] Volpe makes the bald assertion that his reputation as a journalist has been damaged
because he will no longer be viewed as independent and impartial if the Impugned Statements
are believed. However, the plaintiffs have not produced any business or financial record to
establish any downturn in business arising from their loss of reputation.

[380] Consequently, the present case can be contrasted to the decision in Bent, relied upon by
the plaintiffs. In Bent, the plaintiff doctor produced an accountant’s report estimating a direct
financial impact of $578,949, in addition to evidence of a sharp decline in bookings and
unprecedented mass cancellations after the defamatory email had been sent. The plaintiff doctor
in Bent had also been informed by vendors that he had been placed on a “blacklist” by insurance
companies: at para. 145.

[381] In the present case, there is no evidence that the Corriere advertising revenue decreased.
While a damages brief is not required, there is no evidence before the court of monetary
damages, unlike the case in Bent.

[382] The plaintiffs in the present case are akin to the plaintiffs in Levant, where those plaintiffs
“led no evidence of any particular or specific economic harm or damage to their reputation as a
result of the article”: Levant v. Demelle, 2021 ONSC 1074, at para. 70, affirmed in Levant, at
para. 66.

[383] Like the plaintiffs in Levant, the only evidence put forward by the plaintiffs is a “self-
serving statement” which is “completely devoid of any foundation for the belief” that Volpe has
a “reputation as a person held in high regard”: Levant, at para. 69.
 - Page 69 -

(2) No evidence of a causal connection between the defamation and actual

harm

[384] Further, the plaintiffs led no evidence that could establish a causal link between the
Impugned Statements and any loss (even if there had been evidence that advertising contracts
existed and were lost). To the contrary, there is no basis for the court to find such a causal
connection.

[385] The uncontested evidence is that Pizza Nova withdrew its advertising from Corriere on
November 17, 2020, well before any of the Impugned Statements. Pizza Nova based its decision
on its independent view that the comments expressed in Corriere were “not in accordance to our
beliefs” since Pizza Nova “is a very inclusive company”.

[386] Consequently, the decision by Pizza Nova could not have been related to the Impugned
Statements. Instead, the Pizza Nova decision appears related to the tweet that same day in which
the author (Kyle) notified Pizza Nova that Kyle was (i) “[s]ad to hear @PizzaNova is supporting
Corriere Canadese’s homophobic & transphobic publication” and (ii) “not sure [Pizza Nova]
want[s] to be associated with Volpe’s homophobic & transphobic rants”. Kyle expressly invited
Pizza Nova to “hit me up for details”.

[387] In Pointes, Côté J. commented that “evidence of a causal link between the expression and
the harm will be especially important where there may be sources other than the defendant’s
expression that may have caused the plaintiff harm”: at para. 72. The plaintiffs in the present
case led no evidence to address this concern as to the causal link, which is critical given that it
was the plaintiffs’ comments in the Initial Articles up to November 17, 2020 that caused Pizza
Nova to withdraw its advertising in Corriere. Pizza Nova’s view may well have been shared by
other advertising clients with no knowledge of any of the Impugned Statements.

[388] In Gill v. MacIver, 2022 ONSC 1279, Justice Stewart emphasized the importance of
establishing a causal link. The decision involved multiple s. 137.1 motions relating to claims
brought against more than 20 physician and journalist defendants who criticized the plaintiff’s
controversial views about COVID-19. Stewart J. held, at para. 174:

Evidence of a causal link between the expression and the harm is especially
important, in the circumstances of the present motion, where there may be sources
other than these Defendants’ expressions that may have caused the Plaintiffs
harm, including self-inflicted harm by the Plaintiffs themselves as a result of the
professional and public criticism received for controversial statements and media
appearances.

[389] In Levant, the court found that the plaintiffs had “not cleared the threshold of showing
harm and causation”: at para. 71. There is no basis for the court to make a different finding in
this case.

[390] Given the plaintiffs’ failure to provide any evidence establishing harm, the public interest
in permitting this action to continue is very low.
 - Page 70 -

(2) The weight to be attached to the defendants’ expression

[391] I first consider the weight to be attached to the expression of the councillors and trustees,
and then consider the weight to be attached to the expression of the Yahoo Defendants.

(a) The expression of the trustees and councillors

[392] In the present case, the trustees and councillors have a history of activism in the public
interest, and in particular in support of LGBTQ2S+ rights.

[393] The councillors sought to promote diversity in forms of self-fulfillment (i.e., to promote
the ability of LGBTQ2S+ youth to flourish in their identity) and tolerance in accordance with the
HRAP.

[394] The trustees sought to ensure that an inclusive environment for LGBTQ2S+ students,
parents, and teachers would not be endangered by comments which the trustees believed
espoused homophobic, transphobic, and anti-LGBTQ2S+ views. This was of critical importance
to the electorate they represent. The spending of public taxpayer dollars in a newspaper which
councillors (and citizens) believed espoused homophobic, transphobic, and anti-LGBTQ2S+
views, was a matter of importance to the electorate.

[395] The political speech at issue in this case lies at the core of s. 2(b) protection:
Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, at
para. 115. The constitutional right to freedom of expression includes the “public … interest in
being informed about matters of importance”: R v. National Post, 2010 SCC 16, [2010] 1 S.C.R.
477, at para. 28.

[396] It is the role of a municipal councillor to take public positions – even those that may be
unpopular or ill-received – on issues that affect their constituents. They must be afforded the
freedom of speech necessary to properly state, persuade, explain, and justify their positions to the
public: Prud’homme, at para 53.

[397] The Impugned Statements by the councillors and trustees constitute political speech in
pursuit of the public interest by ensuring that City councillors had information relevant to the
decision on the Motion before them. Communication between elected officials on matters of
public interest requires protection. That communication ensures that officials can respond in a
coordinated manner in service of constituents.

[398] The Supreme Court has affirmed the strong public interest in protecting the LGBTQ2S+
community from discrimination: Law Society of British Columbia v. Trinity Western University,
2018 SCC 32, [2018] 2 S.C.R. 293, at paras. 96 and 98.

[399] Further, the Education Act promotes inclusion of LGBTQ2S+ students under ss.
169.1(1)(a.1) and (a.2), which require trustees to conduct themselves in a manner to “promote a
positive school climate that is inclusive and accepting of all pupils, including pupils of any …
sexual orientation, gender identity, gender expression” and “promote the prevention of bullying.”
 - Page 71 -

[400] Finally, the comments of the trustees and councillors were all in response to the plaintiffs
“inject[ing] themselves into public debate over a contentious topic”: Levant, at para. 70. As in
Levant, the plaintiffs “expect[ed] that they are going to be met with some measure of rebuttal,
perhaps forceful rebuttal” (Levant, at para. 70), and that is what happened. As in Levant, the
context of the impugned expressions is “a factor to consider in assessing the level of damages
that the defamatory aspect of the response may create”: at para. 70.

[401] It is in light of all of the above evidence that I find that the plaintiffs have not met their
burden under s. 137.1(4)(b) to establish that the harm they suffered from the Impugned
Statements by the trustees and councillors outweighs the public interest in protecting that
expression.

[402] “What is really going on” in the present case is an attempt by the plaintiffs to chill speech
of elected officials who choose to speak up, in the interests of their constituents, against what
they believe are homophobic, transphobic, and anti-LGBTQ2S+ comments which raise issues of
the spending of public money and the protection of the LGBTQ2S+ community. The plaintiffs
chose to enter the public debate on LGBTQ2S+ issues, used language which they knew would
attract criticism of them as homophobic, transphobic, and anti-LGBTQ2S+, and now ask the
court to permit them to seek more than $30 million in damages from the defendants.

[403] To permit such a claim to proceed would have a chilling effect on public debate, allowing
councillors and trustees to be sued for expressions, even if defamatory, which cause limited or no
damage in the face of overwhelming public interest. The anti-SLAPP legislation was created to
prevent that result.

[404] For those reasons, I find that the plaintiffs have failed to meet their burden against the
trustees and councillors under s. 137.1(4)(b).

(b) The expression of the Yahoo Defendants

[405] There is a strong public interest in ensuring that the Yahoo Defendants are free to report
on an ongoing public debate over the resources that are made available to LGBTQ2S+ students
through the TCDSB.

[406] It is critical for media outlets to be able to provide the views of all parties involved in
debates on matters of public interest. In this case, the Yahoo Article included both the statements
of Volpe and others critical of the inclusion of the LGBT YouthLine link on the TCDSB’s
website and those of LGBT YouthLine reacting to the YouthLine Article.

[407] It was important in the present case to allow readers to understand the debate. Criticism is
a natural and vital part of public interest debates which s. 137.1 seeks to promote by
discouraging SLAPP litigation.

[408] The present case raises the core values of a free press with Charter protected expression
rights. The Yahoo Defendants reported on an issue of public interest, as conceded by the
plaintiffs.
 - Page 72 -

[409] Further, as with the impugned expression of the trustees and councillors, the plaintiffs
injected themselves into a public debate over matters of public interest, and expected that their
comments would attract a strong response. Press coverage of such an issue would have been
anticipated by the plaintiffs, which is what occurred.

[410] Adopting the approach in Armstrong, even if the Yahoo Defendants stepped over the
“defamatory foul line” (not even taking into account the defences discussed above), the vast
discrepancy between the lack of evidence of harm and the high public interest makes this case
one where the weighing under s. 137.1(4)(b) strongly favours the Yahoo Defendants. As the
court held in Armstrong, “[b]y enacting s. 137.1, the legislature acknowledged that, in some
circumstances, permitting the wronged party to seek vindication through litigation comes at too
high a cost to freedom of expression”: at para. 90.

[411] For the above reasons, I find that the plaintiffs have failed to meet their burden under s.
137.1(4)(b) with respect to the claim against the Yahoo Defendants.

Order and costs

[412] For the above reasons, I grant the anti-SLAPP motions brought by the moving party
defendants and dismiss the Action against them.

[413] If the parties cannot agree on costs, I will accept brief written submissions. The
defendants who are required to have costs determined by the court shall deliver written costs
submissions of no more than four pages (not including a costs outline) by June 9, 2022. The
plaintiffs shall file responding written costs submissions of no more than four pages (not
including a costs outline) to each of the costs submissions received from the defendants, by June
23, 2022. The defendants who delivered costs submissions may file reply costs submissions of
no more than two pages by June 30, 2022.

[414] At the hearing, plaintiffs’ counsel advised the court of his clients’ intention to challenge
the constitutionality of ss. 137.1(7) and (8), the costs provisions governing anti-SLAPP motions.

[415] The plaintiffs advised the court that they raised their intention to bring such a
constitutional application in an earlier scheduling attendance before another judge on this matter.
However, the court was advised at the present hearing that no steps have been taken to pursue the
constitutional challenge other than serving a notice of constitutional question to which there has
been no response.

[416] I am not seized of any constitutional application. It must be scheduled through the civil
motions office, most likely through a scheduling case conference.

[417] Plaintiffs’ counsel at the hearing requested an order that no costs be payable until the
constitutional issue has been resolved. Plaintiffs’ counsel submits that requiring payment of costs
on a final judgment while a constitutional challenge is pending would not be appropriate.
 - Page 73 -

[418] Defendants’ counsel submits that a dormant or contemplated constitutional challenge

cannot be used as a method to avoid payment of costs.

[419] I will render my costs reasons after receipt of the written costs submissions. My costs
order will be without prejudice to any position that the parties may take on the payment of costs
if a constitutional challenge is brought, which can be addressed by the court if the issue arises. I
am not seized of any such costs issue.

GLUSTEIN J.

Date: 20220526
 CITATION: Volpe v. Wong-Tam, 2022 ONSC 3106
COURT FILE NO.: CV-21-00660297-0000
DATE: 20220526

ONTARIO

SUPERIOR COURT OF JUSTICE

JOSEPH VOLPE and M.T.E.C CONSULTANTS LTD.,

Plaintiffs

AND:

KRISTYN WONG-TAM, PAUL AINSLIE, YAHOO

MEDIA GROUP INC., ELIZABETH DI FILIPPO,
FRESHDAILY INC., MEDIA CENTRAL
CORPORATION INC., ENZO DIMATTEO, MARIA
RIZZO, NORM DI PASQUALE, MARKUS DE
DOMENICO and IDA LI PRETI,

Defendants

REASONS FOR DECISION

Glustein J.

Released: May 26, 2022