[1]        The internet has conferred upon us all the role of professional critic. Our opinions on any manner of topics can be expressed and published on-line for the edification of all. This includes the rating of virtually everything: restaurants, hotels, businesses of all types, music, books, movies, people themselves. The lawyers who argued this case are rated on-line.

[2]        On-line critics benefit from being protected by ostensible anonymity. They are just a name in cyberspace, often a pseudonym. This shield contributes to the not infrequent slide of postings into less than civil discourse. The reduced threat of personal exposure can embolden the commentary. That is what happened in this case.

[3]        The defendants wrote a vicious on-line review of the plaintiffs’ plumbing store soon after an in-person conflict in the store on July 18, 2018. The plaintiffs are suing for defamation, requesting $100,000 in damages. The defendants, mother and daughter, are moving under the Anti-SLAPP provisions of the Courts of Justice Act R.S.O. 1990, c. C.43  (Strategic Lawsuits Against Public Participation) to dismiss the plaintiffs’ defamation action.

[4]        The numbered company plaintiff is said to operate as Plumbing Mart at 700 Dundas Street East in Mississauga and the individual plaintiff Mark Noonan is a principal in the company.  Susan Moore is 74 years old and Sandra is her daughter. They are disgruntled customers of Plumbing Mart.

[5]        In January 2018, the Moores hired Plumbing Mart to do a bathroom renovation in their condominium. The work was delegated to a subcontractor and the Moores were satisfied with the work that was done.

[6]        In May of 2018, the Moores decided they also wanted to replace a faucet in the bathroom and a toilet paper holder. They ordered the items from Plumbing Mart.  Unhappy with the delay in receiving the items, the defendants personally attended the store on July 18, 2018 and demanded the items or a refund. The evidence from the plaintiff is that it was stated the items were special order and there could be no store refund, only a credit. Heated arguments between the defendants and the staff ensued. The defendants later admitted on Twitter that they themselves were going “blue blazes.”

[7]        Mr. Noonan alleged that he had been assaulted by Susan Moore. The police were called. The police notes indicate that Mr. Noonan alleged that he was slapped. Later on, however, as reflected in the officer’s notes, Mr. Noonan retracted the allegation. In his affidavit on this motion, Mr. Noonan claims that it was a punch to his shoulder and back. He also alleged that several customers who had been in the process of contracting with Plumbing Mart for renovations, left the store after the loud altercations with the defendants, never to be heard from again.

[8]        The day after the incident, the items arrived and were picked up at the store by Susan Moore who also paid the outstanding balance. The defendants allege that Mr. Noonan verbally threatened Susan on this occasion, saying that the incident would cost her $63,000.

[9]        The two postings that are the subject matter of the defamation action were written  after the July 18, 2018 incident by one of the defendants. It is difficult to say exactly when although the print-out of one of them seems to suggest that it was posted on August 11, 2018. To say the posts were offensive and virulent fails to do them justice. It was more a personal attack than it was a true review of the Plumbing Mart store. One post was on the website Homestars.com under the name Persephone and a virtually identical review was placed under the same name on Google.com. These are the highlights of the Homestars review:

[10]        The Google review named Mr. Noonan as opposed to just giving his initials. As well, there was a brief Twitter comment written by Sandra which alleged that the store had tried to “rip me off.” The plaintiffs wrote the defendants a letter on August 27, 2018 announcing an intention to sue them for defamation. The reviews were taken down by the defendants four days later. The Twitter account has been deleted. It cannot be determined by direct evidence how many people aside from the plaintiff read the posts. 

[11]        The provisions of the Courts of Justice Act which govern this motion are  relatively new. They were enacted in 2015 following the recommendations of a report commissioned by the Ontario Government entitled “Anti-SLAPP Advisory Panel, Report to the Attorney General” (Ontario: Ministry of the Attorney General, 2010). SLAPP is an anacronym for Strategic Lawsuit Against Public Participation. SLAPPs are a common occurrence in North America and have been for decades. The quintessential SLAPP action is a defamation action brought by a wealthy plaintiff not so much as to seek compensation for damage done but to silence and punish their enemies. However, the net cast by Ontario’s anti-SLAPP legislation is considerably broader than this very specific context. The key provision balances the right to freedom of expression against the damage done to personal reputation by the allegedly defamatory words. In practice, it serves to both protect the right to freedom of expression and to ensure that the courts are not inundated with inconsequential actions unduly burdening the judicial system.

[12]        The purposes of the legislation are stated in  Section 137.1(1):

[13]        In the summer of 2018, the Ontario Court of Appeal decided six grouped anti-SLAPP cases: see 1704604 Ontario Ltd. v. Pointes Protection Association 2018 ONCA 685; Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686; Platnick v. Bent, 2018 ONCA 687; Veneruzzo v. Storey, 2018 ONCA 688; Armstrong v. Corus Entertainment Inc., 2018 ONCA 689; Able Translations Ltd. v. Express International Translations Inc., 2018 ONCA 690.  The Pointes and the Platnick decisions were granted leave and heard by the Supreme Court in late 2019. Judgment was reserved and is pending.

[14]        The Court of Appeal decisions obviate any need for extensive interpretation of the legislation. The task is to apply the law to the evidence in this case.

[15]        The general methodology of the legislation is described by Justice Doherty in Pointes at paragraph 7,

[16]        Under the merits based requirement, for the action to survive, the plaintiff must show that there are grounds to believe it has “substantial merit” and that the defendant has “no valid defence.”  Lastly, the public interest test dictates that the plaintiff must show that the reputational harm suffered is not outweighed by the public interest in protecting the defendant’s expression.

[17]        In the end result, in my view the plaintiffs’ action founders on the last criteria, the balancing of the potential for reputational harm against the public interest in free expression.  As a result, the plaintiffs’ defamation claim must be dismissed. 

[18]        The defendant must show at the outset that their words are, 1. “expression” which, 2. “Relates to a matter of public interest”: Section 137.1(3).  “Expression” is defined broadly in ss. (2) while public interest is not defined.

[19]        The applicants’ reviews are unquestionably “expression.” They also clearly relate to a matter of public interest. A matter of public interest must be distinguished from a private matter: Pointes at para. 61.  Here, if the expression consisted solely of a personal attack, it would not relate to a matter of public interest. Although I would characterize the posts as more personal attack than a matter of public interest, they were also, judged on an objective standard, a critique of the Plumbing Mart store, the management of the store and the services offered at the store. The invective and malice tainting the critique does not alter its essential nature. The quality and the merit of the criticism, together with the manner of the expression, are irrelevant at this stage: Pointes at paras. 55, 65.

[20]        The plaintiff attempts to separate the portions attacking the personal plaintiff from the parts reviewing the service at Plumbing Mart. This approach cannot prevail in light of Pointes: see para. 60. It would allow parsing of expression into components that themselves have no relation to the public interest and those that do. The purposes of the legislation to encourage expression and to promote participation in debate would be almost entirely defeated. The Supreme Court held in the defamation case of Grant v. Torstar Corp., 2009 SCC 61 at para. 101 that the communication as a whole, not the impugned words themselves, are what must be assessed.

[21]        Two cases have stressed the public importance of reviews of products and services in a similar on-line context: Bradford Travel and Cruises Ltd. v. Viveiros, 2019 ONSC 4587, [2019] O.J. No. 4217; New Dermamed Inc. v. Sulaiman, 2018 ONSC 2517 at paras. 24-26, affirmed on other grounds, 2019 ONCA 141.  As Justice De Sa said in Bradford (para. 31):

[22]        The impugned statements in this case being expression relating to a matter of public interest, the onus shifts to the plaintiff with respect to the merits of the action and the balancing of the potential reputational damage against the public interest in free expression.

[23]        In my view, the plaintiffs have satisfied their burdens under Section 137.1(4)(a). This part of the statutory regime requires the plaintiff to satisfy the judge that there are grounds to believe that the plaintiffs’ proceeding has “substantial merit” ((4)(a)(i)) and the defendants have “no valid defence” ((4(a)(ii)).

[24]        The “substantial merit” requirement is met. Defamation, a tort of strict liability, requires three elements to make out a case: 1. The lowering of reputation in the eyes of a reasonable person; 2. The words must refer to the plaintiff; and 3. The words must have been communicated to at least one person other than the plaintiff: Grant v. Torstar at para. 28.  If these criteria are met, the onus turns to the defendant to demonstrate a defence.

[25]        Maligning the plaintiff for trying to impress his young second wife and citing this as the motive for “running the store into the ground” and bankrupting it; the suggestion that the store is a front for an illegal business, and the pungent allegations of stupidity; these would lower reputation on the face of it. So too would saying that Mr. Noonan’s suppliers will no longer do business with him because they have not been paid. 

[26]        Counsel for the defendants mounted an elaborate argument, partially relying on the Court of Appeal judgment in Able, that the corporate plaintiff could not be connected to the alleged defamation and that there was therefore no merit to the action brought by the corporation. I would reject this argument. The situation in Able was quite different. Able was suing the personal defendant Vitu and added the corporate entity, Express, as a defendant on the supposition that it was Vitu’s corporation. Vitu denied that there was any connection between him and Express and the bare pleading was the only indication to the contrary.  At paragraph 27 of the judgment, Justice Doherty agreed with the motion judge that the absence of a link between the impugned postings and the corporate entity meant that there was no merit to the action vis a vis the company.

[27]        In the present situation, the plaintiff has pleaded and attested in his affidavit that he owns the numbered company plaintiff and that it has the rights given by the personal plaintiff to use the Plumbing Mart name. Despite the defendants’ argument that there is a violation of the Business Names Act, RSO 1990 c B 17 because the business was not identified to the public by its legal or registered name, I do not believe the argument amounts to much.  All the plaintiffs were asserting in their statement of claim is that the business and Mr. Noonan were defamed and therefore the corporate plaintiff which runs and owns the Plumbing Mart store suffered compensatory damages. The corporate plaintiff’s alleged damages flowed from the damages to Mr. Noonan and the Plumbing Mart store.

[28]        Furthermore, in this instance, the connection between the postings and the Plumbing Mart store is clearly made out. In the Google review, the Plumbing Mart business was named and its address was given. The individual plaintiff’s full name was given. The Homestars review gives the name of the business and states that it is in Mississauga. The individual plaintiff’s initials are given. With both reviews, as is generally the case, it can be presumed that they were grouped on-line together with other reviews of the same business. The issue is whether a reasonable person would associate the defamatory words with the plaintiff. I think that they would.

[29]        The third criteria, that the postings would have been seen by at least one person is met. The evidence is weak but rises to the necessary threshold. The internet allows for almost universal access. In the one and a half month period in which they were available, it can be deduced that at least one person must have seen the post on either the Google or Homestars websites.

[30]        It is true that the case for damages is virtually non-existent. There is no direct evidence that anyone visited or read the Plumbing Mart reviews on either platform. However, damages are not part of the prima facie defamation test. The defamation law presumes damages. Given my conclusion with respect to the public interest balancing part of the anti-SLAPP test below, I need not conclusively decide whether the absence of evidence of damages deprives the plaintiffs’ claim of substantial merit. 

[31]        With respect to the “valid defence” element incumbent on the plaintiff, the defendants do not rely on any defences to the action upon this motion with respect to the defamation aimed at the individual plaintiff. Again, the argument of the name of the business is advanced but for the reasons already stated, I do not believe that it can succeed.  The plaintiffs have shown that at this stage, there appears to be no valid defence. 

[32]        The essence of the anti-SLAPP legislation lies in Section 137.1(4)(b) which reads:

[33]        The plaintiffs cannot carry their onus on this balancing test.  It is on this basis that I would grant the application and dismiss the action.

[34]        The provision requires a weighing of the harm likely suffered against the public interest in protecting expression. Looking first at the harm suffered by the plaintiff, this is to be measured primarily by the monetary damage but also secondarily by the general reputational damage. There must be a causal link between the expression and the damages:  Pointes, at para. 88.

[35]        In this instance, the evidence of likely harm to the plaintiffs is weak on several grounds. The record establishes that the total number of reviews as of August 2019 of Plumbing Mart were 26 on Google and 28 on Homestars. This is indicative of the limited number of people visiting the Plumbing Mart reviews.  More people would have read the reviews than would write them, of course, but there is a rough correlation between the number of reviews and the number of people who read them. These are not well-travelled corners of cyberspace. Although I have found that it can reasonably be inferred that some people may have seen the toxic reviews posted by the defendants, the plaintiffs cannot go much beyond this vague conclusion.

[36]        The other reviews of Plumbing Mart are on average quite mediocre, and there are a number of very critical comments.  The before scores are not substantially different than the after scores, implying that there was insignificant reputational damage.

[37]        What would the impact of the reviews be on a reasonable, informed person? As a form of advocacy against Plumbing Mart, they were woefully ineffective. Any person with even a slight degree of discernment would realize at once that the post was malicious and motivated by a personal vendetta. Far from trying to disguise this, the reviews seemed to wallow in it. The initial praise of the store was the only persuasive part of the review. It went straight downhill from there. Why was an employee taunted because of their weight and another for their supposedly low mental functioning? The gratuitous allegation that the store was actually a front for criminal activity was spiteful and would have been easily seen through by a reasonable reader. The attack on the owner and his attempt to impress his second wife was uttered in the same mean-spirited tone as the rest of the review. Finally, the statement, “They also clearly hate women, which is a sign they hate themselves” was fatuous and, ultimately, unintelligible.

[38]        The words of the review were their own undoing. The credibility of the author was thoroughly undermined. The impact of speech should be evaluated in part based on whether the source is reputable and trustworthy: R. v. Kopyto 1987 CanLII 176 (ON CA), [1987] O.J. No. 1052, 39 C.C.C. (3d) 1 (C.A.) at para. 244 per Cory J.  In their posting, the defendants exposed themselves as being irretrievably biased reviewers whose comments could not be taken at face value. Any harm to the plaintiffs was diminished as a result.

[39]        In conclusion, there was almost a total absence of proof of damages general or specific from the defendants’ review. The harm to reputation was minimal: see New Dermamed Inc. v. Sulaiman at para. 15. Moving to the counterweight of the public interest in protecting the defendants’ expression, freedom of expression is at the centre of our constitutional democracy. Section 2(b) of the Charter confers special status on “freedom of thought, belief, opinion and expression, including freedom of the press and other media communication.” These are “fundamental freedoms.”

[40]        The Supreme Court said in the seminal case of Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, [1989] S.C.J. No. 36, at para. 42

[41]        If the speech in issue here could be described as “commercial speech,” it is nonetheless of substantial value. In  Ford c. Québec (Procureur général), 1988 CanLII 19 (SCC), [1988] 2 S.C.R. 712; 54 D.L.R. (4th) 577 at p. 618 (D.L.R.), the Supreme Court said this about commercial speech:

[42]        The so-called “commercial speech” referred to in Ford was advertising.  I would not place the speech here in issue into the same category. It is expression by individuals not to sell their own products or services but to express their views on products and services provided by others. That is a higher, more protected form of expression. The speaker will not generally have an economic motive and self-fulfillment and self-expression will be a more prominent animating theme.    

[43]        Reviews and criticism have been a human endeavour for eons. Reviews of theater, books, art, restaurants, political figures and movements and businesses were fixtures of our social life well before the internet existed. They could be found in various types of media including television, newspaper, magazines including trade magazines, periodicals and radio, amongst others. Now with the internet, everything gets a grade and a review. They are ubiquitous and difficult to avoid.

[44]        The popularity of a particular expression does not enhance its value just as the lack of popularity does not diminish its value:  R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697, 61 C.C.C. (3d) 1 at para. 78; R. v. Zundel, 1992 CanLII 75 (SCC), [1992] 2 S.C.R. 731 at p. 753. But the mode of communication and its prevalence provide a clue to its social importance as a means of expression. Reviews on the internet are open to a wide-range of criticisms. Some are frivolous, some are flippant, many are written without a great deal of thought or care. Anonymity may lead to irresponsible postings, writings that if the author had to defend them personally under their own name, might be written with a different tone and content.  But whatever the integrity of online reviews, there is no denying that they are now a fixture of our world.  Everyone reads them, many people write them. They have burgeoned over the last twenty years. Whether you like them or not, such reviews are now a common channel for personal expression. Those who write them believe they are lending us their considered, sage advice for our common benefit.    

[45]        The proliferation of this form of expression does not justify defamatory review posts.  It does, however, counsel caution to ensure that defamation “chill” does not settle in.  That is unlikely, given its force and volume.  But it is a relevant consideration.

[46]        In R. v. Lucas, 1998 CanLII 815 (SCC), [1998] 1 S.C.R. 439, 123 C.C.C. (3d) 97, the Supreme Court in its treatment of the constitutional attack on the Criminal Code defamatory libel legislation reiterated that in determining whether words are “expression”, their content cannot be taken into account: Lucas at para. 26, citing Zundel at p. 753. 

[47]        However, in the Section 1 analysis, that changes. Justice Cory said in Lucas at para. 34:

[48]        The necessity of pigeonholing the nature of expression in order to determine the level of protection it is owed should be approached gingerly.  If expression is truly an innate good, grading the level of protection that ought to be permitted is an exercise of great delicacy. It is unfortunate that it need be done but the authorities appear to leave little choice. The process should be undertaken with an awareness that determining the “core values” of free expression can lead to the downgrading of expression to the point where it could lose the Section 2(b) protections. The problem is that there is a good deal of subjectivity in evaluating the intrinsic worth of expression.  For example, history has shown that what is valued and what is not can change drastically over time. The controversy surrounding D.H. Lawrence’s Lady Chatterley’s Lover is one of the more notorious examples.

[49]        With these general comments, attention must shift to what the defendants  actually said. Cutting through the thorns and brambles of personal attack in the defendants’ review, there was a criticism to be found in their post. The service at the store was poor. They were not motivated to help their customers. The store was not to be trusted. Of course, this all could have been unfounded. There are two sides to every story. The plaintiff’s version of their service and level of competence has not been fully told. In any case, the postings were, without doubt, expression worthy of protection.

[50]        I am mindful of Justice Doherty’s warning in Pointes that the public interest in protecting speech is lower where the opinions expressed are offensive as they were here: see Pointes para. 94, Able Translations Ltd., at paras. 82-84 and 96-103, Fortress at para. 51.  But there was a core of criticism in the review, albeit wrapped in personal vitriol.

[51]        Performing the exercise mandated by 137.1(4)(b) of the Courts of Justice Act, the need to protect expression in my view clearly outweighs the relatively minimal harm to reputation.  The plaintiff’s lawsuit must be dismissed.

[52]        The defendants request Section 137.1(9) damages.  Section 137.1(9) of the Anti-SLAPP sections of the Courts of Justice Act permits a judge in dismissing an action if “appropriate”, to award costs if the proceedings were brought in “bad faith or for an improper purpose.”  In United Soils Management Ltd. v. Mohammed 2019 CarswellOnt 2370, 2019 ONCA 128 at para. 34 (leave dismissed [2019] S.C.C.A. No. 153), the Court of Appeal held that the subsection was

[53]        The prospect of a damages award may act as a further deterrent to SLAPP plaintiffs launching legal actions for the purpose or having the effect of quelling expression.  In this case, I decline to make a finding of bad faith or improper purpose. In determining whether the plaintiffs’ defamation action was in bad faith or for an improper purpose, it is important to keep in mind the context in which the defamation action originated. Here, the defendants’ postings goaded and  provoked the plaintiff as they would have any reasonable people. While the defamation action which followed cannot be condoned, it was on the other hand quite understandable. Taken literally, the plaintiffs wanted the defendants to pay for their personal attack on them. The defendants had lashed out in their postings; the plaintiff struck back with a lawsuit. This is a variation on conflict sometimes referred to as “retail rage.” In the total context of the dispute, the bad faith or improper purpose referred to in Section 137.1(9) were not present.

[54]        In any case, only compensatory damages are permitted by Section 137.1(9), not punitive damages: United Soils at para. 38. The defendants attest to suffering stress and anxiety as a result of the defamation action against them.  In my view, on the record presented here, these protestations do not give rise to a substantial case for compensatory damages.

[55]        At the hearing, counsel for the plaintiff was emphatic that there were two actions brought here: the defamation claim and the tort of intentional interference with economic relations.  As there was no attack by the defendants on the latter, it must be maintained.

[56]        This cause of action emerged for the first time in counsel for the plaintiffs’ submissions on the hearing made in response to counsel for the defendants’ submissions. The plaintiffs’ factum did not even mention the economic interference tort.  In my view, a reading of the statement of claim demonstrates that economic intereference was not actually pleaded.

[57]        There is a heading in the statement of claim entitled “Defamatory Actions, Intentional Interference with Economic Relations” but no other reference to it is made in the statement of claim. The heading appears in the part of the statement of claim just before the recounting of the defendants’ visit to Plumbing Mart on July 18, 2018.  In the summary of that event, it is alleged as mentioned above, that several customers left the store, never to return. However, under the damages heading, the focus is on damages from loss of reputation and defamation. No damages claim is made in reference to the loss of the customers who supposedly left the store on July 18, 2018 or for anything whatsoever besides the alleged defamation (see paras. 41-46).

[58]        It is questionable whether the purported tort can be separated out from the defamation action. In order to be extricable from the defamation claim and thus capable of adverting the reach of the Anti-SLAPP legislation, the allegation of intentional economic interference must focus on the defendants’ non-expressive activity in the store on July 18, 2018. However, the statement of claim fails to provide the necessary factual averments for the tort of intentional interference with economic relations arising from that event. In Grand Financial Management Inc. v. Solemio Transportation Inc 2016 ONCA 175 at para 62 (leave to appeal refused [2016] S.C.C.A. No. 183) the court set out the three elements of the tort: 1. There must be an intention to damage the plaintiff’s economic interests; 2. The interference must be by illegal or unlawful means; and 3. The plaintiff must have suffered economic loss as a result.

[59]        Rule 25.06(1) of the Rules of Civil Procedure requires that a statement of claim contain a statement of the facts upon which the plaintiff relies. Furthermore, Rule 25.06(8) provides that where, amongst other states of mind “…intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.”  Here, to anchor the first element of the tort, the intent to damage economic interests must be grounded in factual assertions. The fact would have to be pleaded that the defendants intentionally drove away other customers in order to intentionally inflict economic detriment upon the plaintiffs.  It was not pleaded, even circumstantially.  Nor was the second element of the tort, an illegal or unlawful means which resulted in the damage. There was no factual averment implied or explicit that the argument in the store was somehow unlawful or illegal.  

[60]        In summary, I cannot interpret the plaintiffs’ statement of claim as pleading intentional interference with economic relations. A mere passing mention of it in a heading in the statement of claim with an absence of underlying facts is insufficient. The failure to request damages attributed to the purported tort adds to the conclusion that it was not pleaded. I therefore make a declaration that the statement of claim does not plead the tort of intentional interference with economic relations and that there is nothing before the court with respect to that cause of action. 

[61]        In conclusion, the plaintiffs’ defamation action is dismissed pursuant to Section 137.1(3) of the Courts of Justice Act. If the parties cannot agree on costs, the defendant shall deliver submissions of not more than 2 pages, not counting the bill of costs, within 30 days; the plaintiff shall have the same limit and shall file within 20 days of the defendant.