$6M lawsuit over tweets from Guelph woman reinstated by appeal judges

The Ontario Courthouse at 361 University Avenue in Toronto is photographed on Monday, May 2, 2022.The pandemic forced the court system to quickly adopt technology it had long resisted, such as facilitating remote hearings, and even now as society resumes "in person," two Ontario chief justices say virtual options will remain essential for access to justice.THE CANADIAN PRESS/Christopher Katsarov

An appeals court has ruled a $6 million defamation lawsuit against a Guelph woman stemming from a series of Tweets can move ahead, more than a year after a previous judge tossed the case out.

In August 2021, Probhash Mondal and his company Guelph Medical Imaging (GMI), launched a lawsuit seeking $5 million in general damages and $1 million in punitive damages against Guelph couple Stephanie Marie Evans-Bitten and her partner – alleging the couple had defamed him on Twitter.

On Thursday, a decision from three judges was released by the Court of Appeal for Ontario signalling the lawsuit can move forward against Evans-Bitten.

Initially, Evans-Bitten’s partner was also named in the lawsuit, but the motion judge dismissed the appellant’s action against her.

The Court of Appeal for Ontario upheld that particular decision, saying “I would not interfere with the motion judge’s decision to dismiss the appellant’s action.”

The court found when it comes to Evans-Bitten, the “motion judge erred in his assessment of the merits-based hurdle.”

“There are grounds to believe that Evans-Bitten’s fair comment defence will not succeed. Accordingly, the appellant has cleared the merits-based hurdle. The appellant has established that the public interest in permitting him to continue his defamation action outweighs the public interest in protecting Evans-Bitten’s expression. As a result, his defamation action against her may continue.”

LAWSUIT SEES DAY IN COURT

In February 2022, the lawsuit had its first and only day in court.

The lawsuit was dismissed after the judge agreed it fell under anti-SLAPP (strategic lawsuit against public participation) legislation.

During the trial, the motion judge focused on a tweet posted by Evans-Bitten on June 11, 2021, noting that the tweet was the culmination of a more extensive tweeting history.

The tweet reads: “This #PrideMonth2021, I want to remind #Guelph leaders that gay residents in this city are being forced to seek healthcare diagnostics in other cities, because Guelph Medical Imaging is owned and lead [sic] by a man who thinks and tweets this stuff:”

Attached to Evans-Bitten’s tweet were screenshots of a now deleted tweet posted by Mondal that said: “This is just how @JohnTory cares about his city. Why are we surprised Wonder what he’s doing this weekend! Where’s the tranny, @JohnTory’s got some benjamins for your thong!!!”

Another previous tweet posted by Mondal, which has also been deleted, reads: “Is it possible our Prime Minister suffers from Vexiphobia? That which he waves is NOT our national flag. Please do not defile our flag.”

This tweet included a picture of Prime Minister Justin Trudeau waving a Canadian flag that was in Pride rainbow colours.

Evans-Bitten replied to her own June 11, 2021 tweet with an added statement: “My wife and I have to seek medical imaging diagnostics outside of #Guelph because the current healthcare provider here is a homophobic and transphobic bully”.

Court documents say Evans-Bitten’s June 11, 2021 tweet followed a series of tweets in May 2021 in which she stated, among other things, that the appellant is a “homophobic bully + right-wing public health basher” and described the appellant’s clinic as “right-wing, homophobic and public health bashing,”

JUDGE’S FINDINGS

The motion judge who originally heard the case found that Twitter is not a medium for serious political debate.

The judge found that “a stark difference in political views does not make commentary malicious or undermine the fact that the commentary is fair comment.”

In referring to Mondal, the judge said he jumped into the turbulent river of Twitter commentary with some vulgarly worded observations that touched a nerve with the defendants.

“He got it back as good as he gave it, and got wet in the process,” the judge said.

The appeals decision did not list a date for when the lawsuit will proceed.