By Caroline Swiderski
Introduction
In the recent decision in Universalcare Canada Inc. v Gusciglio[1], the Ontario Court of Appeal overturned a motion judge’s decision to dismiss a defamation action under section 137.1 of the Courts of Justice Act, RSO 1990 c. C.43 [“CJA”]. In doing so, the Court reiterated the importance of the balancing analysis required under the anti-SLAPP protections offered by section 137.1. Specifically, the Court of Appeal cautioned against reliance on the assumed value of an expression absent thoughtful consideration of its harm and the merits of the plaintiff’s claim.
Factual Background
Dominica Gusciglio [“the Respondent”] took issue with the care her mother was receiving at the long-term care home, Villa Columbo Seniors Centre [“Villa Columbo”].[2]
The Respondent raised her complaints with both the management and staff at Villa Columbo as well as the Ministry of Health and Long-Term Care. However, she eventually took to Twitter to air out her frustration.[3]
Using several anonymous accounts with thousands of followers, the Respondent authored approximately 100 tweets over a three year period. The impugned tweets included allegations that Villa Columbo would kill residents if their relatives complained of the long-term care home’s abuse, and descriptions of Villa Columbo’s staff as “devils”.[4]
Many of the impugned tweets included photographs of a man named Joseph Gulizia, who had been Villa Columbo’s manager, as well as the CEO of Universalcare Canada Inc. [“Universalcare”]. The impugned tweets claimed, in part, that Mr. Gulizia was a “disgusting pig” and “an elder abuser”.[5]
In response to these tweets, Universalcare, Villa Columbo, and Mr. Gulizia [collectively, “the Appellants”] commenced a defamation action against the Respondent in 2019 [the “Defamation Action”]. However, the Respondent moved to have the Defamation Action dismissed pursuant to section 137.1 of the CJA (i.e., an anti-SLAPP motion).[6]
The relevant portions of section 137.1 read as follows:
Order to dismiss
(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.
No dismissal
(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,
(a) there are grounds to believe that,
(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the proceeding; and
(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
The Motion
Pursuant to subsection 137.1(3), the motion judge found that the Respondent’s tweets related to a matter of public interest, namely elder care in long-term care homes. However, the motion judge then turned her mind to subsection 137.1(4)(b), omitting any analysis of subsection 137.1(4)(a).[7]
The judge concluded that the Appellants had adduced insufficient evidence of harm and that it was reasonable to infer that the Appellants’ purpose in commencing the action for defamation had been retribution and deterrence. The motion judge concluded that such actions for defamation were what section 137.1(4)(b) was intended to screen out.[8]
On this basis, the motion judge granted the motion and dismissed the Defamation Action.[9]
Issues on Appeal
There were two issues on appeal:
- -whether the motion judge erred in finding that the Respondent’s expressions related to a matter of public interest; and
- -whether the motion judge erred in her analysis of the Defamation Action’s merit and in her analysis of the harm that the appellants had allegedly suffered?[10]
Analysis
- (1) The action arises from expressions that relate to a matter of public interest.
The Ontario Court of Appeal upheld the motion judge’s conclusion that the tweets related to a matter of public interest.[11]
The Court of Appeal acknowledged that the impugned tweets were expressions of a low value given their personal motivation. That being said, the impugned tweets had been made within the context of elder care in long-term care homes, which the Court of Appeal accepted was incontrovertibly a matter of public interest.[12]
- (2) The motion judge made reviewable errors in her s. 137.1(4) analysis.
However, the Court of Appeal overturned the motion judge’s decision on the second issue; namely, that the motion judge had erred in her analysis of the defamation claim’s merit and in her analysis of the harm the Appellants had allegedly suffered.[13]
Despite its “repeated admonishments that anti-SLAPP motions are intended to operate as an efficient, preliminary screen to filter out abusive claims”, the Court of Appeal identified two reviewable errors in the motion judge’s “brisk” section 137.1(4) analysis.[14]
First, the Court of Appeal found that the motion judge erred in finding that the Appellants’ advanced insufficient evidence of harm and had applied too stringent of a standard for the required evidence of harm.[15]
In order to properly assess the harm from defamation, the Court of Appeal held that the motion judge was required to consider the, “sting of the words used, if not in every tweet then at least according to some representative samples drawn from a recognizable scheme of characterization”.[16] The Court of Appeal found that, by not conducting the analysis under section 137.1(4)(a), the motion judge had “left undone” the step where she would have properly considered the “sting of the words used”.[17]
This error, in turn, meant that when the motion judge assessed the evidence of harm under the section 137.1(4)(b) analysis, she had “left in the shadow” facts that could have allowed the motion judge, “‘to draw an inference of likelihood’ of harm of a magnitude sufficient to outweigh the public interest in protecting the defendant’s expression”.[18]
On the analysis under section 137.1(4)(a), the Court of Appeal recognized that the analysis must be skewed to the “weighty importance that reputation must be given”. [19] The Court of Appeal commented that one such example could have been that Mr. Gulizia relies on the trust of the public as well as regulatory bodies in his role as CEO of Universalcare.[20] In such a case, the Court of Appeal held that the likelihood of harm resulting from the impugned tweets was higher and favoured the Appellants.
Beyond the dearth of facts considered and the failure to conduct the proper analysis under section 137.1(4)(a), the Court of Appeal further found that the motion judge had not applied the proper test for balancing of interests under 137.1(4)(b).
First, the motion judge applied too high a standard for the evidence required to establish harm under that section.[21] The Court of Appeal endorsed that, at the public interest hurdle, “the plaintiff need not prove harm or causation; the court is tasked at this stage with drawing inferences of likelihood in respect of the existence of harm, its magnitude, and the relevant causal link”.[22]
Second, the motion judge erred in assuming that the Respondent’s impugned tweets had value. [23] It was an error to conclude that once there was insufficient evidence of harm that the analysis ended. [24] Rather, the evidence of harm needed to be weighed against the value of the tweets, which the Court of Appeal assessed previously to have been low as they were personally motivated. [25]
At this point, the Court of Appeal warned that dispensing with an analysis under subsection 137.1(4)(a) should only be done in the clearest of cases, which this had not been. The reason being, in assessing part (b), that preliminary assessment of the value of the impugned tweets and whether they were motivated by malice, would have assisted in the balancing step under part (b).[26]
The Court of Appeal distinguished the motion judge’s conclusion that the impugned tweets were an expression related to a matter of public interest from the further conclusion that the tweets were “necessarily of high value” or outweighed the public interest in permitting the appellants to pursue the Defamation Action.[27] Both parts of the test needed to be met to strike the action.
In light of these two errors, the Court remitted the matter back to the Superior Court but before a different judge for a fresh balancing analysis.[28]
Takeaways
The analysis under subsection 137.1(4) is a two part test. Both parts are essential and intertwined. The part (a) analysis requires the expression to be in the public interest but also involves and assessment of the value to that public interest. Low value is personally motivated. Omitting that value analysis affects part (b) where the risk of harm (even implied) is weighed higher for reputational risk and the value of the expressions are then balanced against that harm. Skipping the value analysis or applying a too stringent proof of harm results in unfairly biasing the subsequent balancing analysis under subsection 137.1(4)(b).
This decision serves as a powerful reminder that reputational harm is a high value item to be protected by the Courts. Only high value expressions of public interest can allow an anti-SLAPP motion to succeed to quash a defamation claim.
[1] 2025 ONCA 583 [“Universalcare”].
[2] Ibid at para 1.
[3] Ibid at paras 1-3.
[4] Ibid at para 2.
[5] Ibid.
[6] Ibid at para 3.
[7] Ibid at paras 5-6.
[8] Ibid at paras 6-8.
[9] Ibid at para 5.
[10] Ibid at para 9.
[11] Ibid at para 11.
[12] Ibid at para 10.
[13] Ibid at para 12.
[14] Ibid at paras 13-15.
[15] Ibid at para. 16.
[16] Ibid at para 15.
[17] Ibid.
[18] Universalcare, supra note 1 at para 15 citing Hansman v Neufeld, 2023 SCC 14 at para 67.
[19] Universalcare, supra note 1 at para 15 citing Bent v Platnick, 2020 SCC 23 at para 146.
[20] Ibid at para 15.
[21] Ibid at para. 16.
[22] Ibid at para. 16, citing Mondal v. Kirkconnell, 2023 ONCA 523, 485 D.L.R. (4th) 90, at para. 30; 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at para. 71
[23] Universalcare, supra note 1 at para 17.
[24] Ibid.
[25] Ibid at para 10.
[26] Ibid at para. 18.
[27] Ibid.
[28] Ibid at para 19.
