Link: Case Summary Document
Citation:  ONCA 355
Acknowledgement:The Pemsel Case Foundation thanks The Australian Centre for Philanthropy and Nonprofit Studies for its contribution in the drafting of this Case Note.
Anti-SLAPP suit appeal involving volunteers of a Canadian nonprofit.
1. Muslim Awards for Excellence (MAX) is an organization that encourages and recognizes the professional, educational, and charitable achievements of Canadian Muslims.
2. Choudry Ajlal Mazhar (Mazhar), described himself as a Pakistani Muslim who came to Canada in 2007 at the age of 18 to make a better life. He studied engineering at the University of Toronto and is employed as a consultant. He met the family of Salwa Farooqi (Farooqi) in 2013. They shared the same cultural and religious background. In 2015 Farooqi received a marriage proposal over Facebook Messenger which was the first time she had learned of Mazhar’s romantic interest. She declined.
3. Farooqi was already a member of MAX and agreed to Mazhar’s request to introduce him to MAX’s founder in 2018. Mazhar became involved with MAX as a volunteer and mentor, and had communications with Farooqi in respect of MAX work.
4. Later in that year, Mazhar returned to the topic of marriage and suggested that he was still waiting for her. Farooqi advised Mazhar, in no uncertain terms, that she did not appreciate his comments, that she now had a partner, and that he should respect her boundaries. In October, she blocked Mazhar on WhatsApp, a messaging platform, and asked him not to communicate with her unless it was necessary. In early 2019, in an email, Mazhar stated that he had developed a severe hatred for Farooqi and her mother over the past few months, which he now traced to the influence of black magic.
5. Farooqi contacted Dr. Saad Ahmed, the Chair of MAX Mentors, to discuss the situation and forwarded the “black magic” email to him. MAX set up a Special Committee to conduct a confidential investigation and reached a decision not to take the matter further. Mazhar’s lawyers threatened to sue Farooqi for defamation over her claims to MAX. In 2019 MAX sent an email to Mazhar advising him that the MAX Mentors team was undergoing substantial restructuring and that MAX would be in touch if it needed further volunteering time.
6. Mazhar then commenced a defamation action against Farooqi claiming general and special damages in the amount of $75,000, and punitive, aggravated, and exemplary damages in the amount of $25,000. He was self-represented.
7. Farooqi did not file a statement of defence before bringing an anti-Strategic Lawsuit Against Public Participation (SLAPP) motion.
8. Legislation (s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43) provides an anti-SLAPP provision. The legislation is intended to encourage individuals to express themselves on matters of public interest, to promote broad participation in debates on matters of public interest, to discourage the use of litigation as a means of unduly limiting expression on matters of public interest, and to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.
9. In an anti-SLAPP motion the defendant making the motion must first persuade the judge that the lawsuit “arises from an expression made by the person that relates to a matter of public interest”. If this is made out then the onus shifts to the plaintiff, the responding party on the anti-SLAPP motion, to persuade the Court that there are grounds to conclude that:
(i) the lawsuit has substantial merit;
(ii) the defendant has no valid defence; and
(iii) the harm likely to be, or which has 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”.
10. The initial Court found that Farooqi had satisfied her onus of demonstrating that her expression related to a matter of public interest, being the character and integrity of mentors in a volunteer organization. The Court decided that it was enough that some segment of the MAX community would have a genuine and legitimate interest in knowing about the character and integrity of mentors in their organization.
11. The initial Court found that there were reasonable grounds to believe that the substantial merit requirements of Mazhar’s claim were satisfied, but there were valid defences to the claim. Further, when weighing the public interest in protecting Farooqi’s expression versus the harm done to Mazhar’s reputation, there was no contest. Mazhar had not met his burden and failed on this component of the test.
12. The initial Court found that Mazhar commenced his defamation claim to punish Farooqi for complaining to MAX about him, and to intimidate her in case she planned on going further. Farooqi was successful in the anti-SLAPP motion, and Mazhar’s action was dismissed. Farooqi was awarded cost in the amount of $75,212.28 and damages in the amount of $10,000.
13. Mazhar, again self-represented, appealed the decision on the following grounds:
1. The initial judge engaged in a one-sided consideration of the facts;
2. The initial judge erred in his application of the test applicable to motions under s. 137.1 of the Courts of Justice Act; and
3. The initial judge erred in awarding the respondent full indemnity costs and s. 137.1(9) damages.
14. The Appeal Court noted that it does not revisit the findings of fact made by the court below absent palpable and overriding error. The Appeal Court found the initial judge’s findings were fully supported by the record.
15. The Appeal Court found that the initial Court had not erred in the application of the test, noting that it is in the public interest that persons working with a volunteer organization be able to complain to the organization about personal harassment by another volunteer (at ). MAX was mistaken to regard the respondent’s expression to its Special Committee as relating to a private and personal matter.
16. MAX had a duty to provide an environment for its volunteers that was free from harassment. In relation to the balancing of public interest, the Appeal Court endorsed the initial Court’s finding that Farooqi’s expression had been made in good faith, without malice, and in the public interest. On the other hand, the motion judge found that Mazhar brought this defamation action in bad faith and for an improper purpose to punish Farooqi.
17. In relation to costs, the Appeal Court Found that section 137.1(7) creates a presumption that a party who succeeds in having an action dismissed under the section is entitled to full indemnity costs. The initial judge properly applied the presumption and awarded full indemnity costs in a fair and reasonable amount. The Appeal Court also awarded further costs of $25,000 for the appeal hearing to Farooqi.
Implications of the case:
The initial judgment can be viewed at Mazhar v. Farooqi, 2020 ONSC 3490.
A strategic lawsuit against public participation (SLAPP) is intended to intimidate and silence critics by burdening them with the cost of a legal defence, until they abandon their criticism or opposition. In the typical SLAPP, the plaintiff does not normally expect to win the lawsuit. The plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs, or simple exhaustion and abandons the criticism. In some cases, repeated frivolous litigation against a defendant may raise the cost of directors and officers liability insurance for that party, interfering with an organization’s ability to operate. A SLAPP may also intimidate others from participating in the debate. SLAPPs bring about freedom of speech concerns due to their chilling effect.
To protect freedom of speech some jurisdictions have passed anti-SLAPP laws (often called SLAPP-back laws). These laws function by allowing a defendant to file a motion to strike and/or dismiss on the grounds that the case involves protected speech on a matter of public concern. The plaintiff then bears the burden of showing a probability that they will prevail. If the plaintiffs fail to meet their burden their claim is dismissed and the plaintiffs may be required to pay a penalty for bringing the case.
The case may be viewed at: