Case information

Tort law — Defamation — Strategic lawsuits against public participation (“SLAPP”) — Whether allegations of intimate partner violence should be protected by anti-SLAPP regime — Weighing of competing public interest in expression, protection of vulnerable groups and pursuit of defamation actions — Evaluating existence of harm — Whether harm results from particular expression — Deference owed to anti-SLAPP determinations —Extent to which anti-SLAPP legislation should apply to non-defamation causes of action — Whether anti-SLAPP regime should protect against non-defamation causes of action — Deference owed to determinations of malice when considering defence of qualified privilege in anti-SLAPP lawsuits — Whether motion judges can consider qualified privilege in SLAPP lawsuit when allegations of intimate partner violence made to police — When appellate courts should interfere with motion judge’s findings on malice — Courts of Justice Act, R.S.O. 1990, c. C43, s. 137.1(4)(b).

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

In January 2020, Mr. Marcellin commenced an action for damages alleging harm to his reputation and other injuries as a result of the allegedly defamatory statements of Dr. Young (his former spouse), Ms. Walker of ANOVA and Ms. Wiggins of the London Abused Women’s Centre (LAWC). He focussed on four specific incidents which occurred while he and Dr. Young were engaged in proceedings he had brought to vary their separation agreement. First, Ms. Wiggins and Ms. Walker told his supervisor of Dr. Young’s allegations of historical assaults and continuing litigation abuse, and asked him to use his influence to stop Mr. Marcellin from pursuing the variation proceedings. Second, in the context of a dispute about their elder child’s wish to live with Mr. Marcellin, Dr. Young disclosed the historical assaults to the police, who arrested Mr. Marcellin and charged him with two counts of assault. Third, Ms. Walker emailed Mr. Marcellin’s supervisor to tell him, among other things, about the charges and to express hope that he would be removed from the Safe Cities initiative and other projects of that nature, confirmed that she was aware of the charges to members of the media, and posted the charges on social media. Fourth, while Dr. Young and Ms. Walker were discussing a letter-writing campaign to mobilize women to support them, Dr. Young sent letters to various individuals in leadership which disclosed her allegations of abuse, the criminal charges, Mr. Marcellin’s reassignment pending the outcome of the criminal proceedings. In January 2019, when he was about to return from a medical leave for stress, Mr. Marcellin was terminated from his employment with the City. The City said that the decision was due to restructuring. Mr. Marcellin claimed that Dr. Young’s allegations of historical assaults were either blatantly false or so heavily embellished as to distort the truth, that they stemmed from an animus towards him, and that they were a deliberate attempt to harm him as retribution for pursuing his rights in the family law proceedings. He also claimed that Ms. Wiggins and Ms. Walker acted outside their organizational mandates, influenced or contributed to the false allegations, inappropriately wielded their influence, and maliciously or recklessly defamed him in the media.

Dr. Young, Ms. Wiggins and Ms. Walker filed a motion under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C43, commonly known as the anti-SLAPP provision.

The motion judge granted the anti-SLAPP motion and dismissed the action as against Dr. Young, Ms. Walker, LAWC, Ms. Wiggins and ANOVA. The Court of Appeal allowed Mr. Marcellin’s appeal, setting aside the order of the motion judge and dismissing the anti-SLAPP motion. This allowed Mr. Marcellin’s action to proceed.