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CIVIL PROCEDURE - Disposition without trial - Dismissal of action

Friday, December 18, 2020 @ 6:10 AM  


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Appeal by the defendants from the dismissal of their motion to dismiss the respondents’ defamation action under the Strategic Litigation Against Public Participation provision of s. 137.1 of the Courts of Justice Act. The respondent law firm referred clients to the appellants for occupational therapy. The appellants would be paid by the client’s insurance company. In the event of a dispute between the insurer and the client, the respondents agreed to protect the appellants’ accounts by holding funds received from the insurance company in trust and would pay the appellants if the clients did not object or the appellants proved their expenses at a hearing. The respondents began to question charges made by the appellants which led to a breakdown in the parties’ relationship. The appellants terminated the referral arrangement with the respondents in 2016 and brought an action against the respondents seeking payment of their accounts. The alleged defamatory statements were made by appellant’s president standing outside the respondents’ office holding a sign stating that the respondents would not pay the appellants and had seized their funds. The motion judge held that the impugned expression concerned the appellants’ private and commercial interests and did not relate to a matter of public interest within the meaning of s.137.1(3) and that the appellants’ alleged defamatory comments were sufficiently great as to favour of letting the respondents’ defamation action proceed.

HELD: Appeal dismissed. The motion judge erred by taking into account irrelevant considerations in determining whether the expression at issue related to a matter of public interest. Motive, merit and manner were irrelevant in determining whether expression related to a matter of public interest under s. 137.1(3). It was not legally relevant whether the expression was desirable or deleterious, valuable or vexatious, or whether it helped or hampered the public interest. Although the motion judge erred in taking into account irrelevant considerations, his conclusion that the appellants’ expression did not relate to a matter of public interest was amply supported by the relevant considerations he relied upon. The fact that the parties were members of regulated professions did not make their dispute a matter of public interest, nor did the fact of unrelated proceedings by the Law Society of Ontario concerning the respondents make it so. The expression at issue in this case was really about a private commercial dispute between the appellants and the respondents.

Sokoloff v. Tru-Path Occupational Therapy Services Ltd., [2020] O.J. No. 4976, Ontario Court of Appeal, G. Huscroft, B. Zarnett and S.A. Coroza JJ.A., November 17, 2020. Digest No. TLD-December142020009