Background
Christopher Zeppa, the principal of a property development company, and Karen Rea, a Markham City councillor, had an acrimonious history arising from Rea’s opposition to a rezoning proposal led by Zeppa’s corporation. Rea’s opposition ultimately failed. Shortly after Rea was re-elected to Markham City Council, the two unexpectedly encountered each other at a restaurant and exchanged unpleasantries. Rea subsequently filed a complaint with police alleging that Zeppa had threatened her during the encounter. Police investigated, interviewed Zeppa and several witnesses, and concluded the conduct did not amount to criminal behaviour. The investigation was closed, no charges were laid, and the complaint was not made public. Separately, Zeppa filed a complaint with Markham’s Integrity Commissioner about Rea’s conduct, and the Commissioner found she had breached the City’s Code of Conduct, though the City Council declined to sanction her.
Zeppa subsequently commenced a civil action seeking over $1,000,000 in damages, including for defamation, on the basis that Rea’s police complaint constituted a false and defamatory statement. Two years later, he amended the claim to add four further causes of action — breach of fiduciary duty, interference with economic relations, misfeasance in public office, and champerty — all relating to Rea’s opposition to his development project, and increased the total claim to $11,000,000.
Rea brought a motion to dismiss the action under r. 137.1 of the Courts of Justice Act (the anti-SLAPP provision). The motion was initially dismissed at first instance on the ground that the expression did not relate to a matter of public interest, but the Court of Appeal allowed an appeal from that ruling in 2023, finding that the expression did relate to a matter of public interest, and remitted the remaining issues under s. 137.1 to a different Superior Court judge. On remittal, Justice Brownstone dismissed Zeppa’s action in its entirety, finding he had not established that the claim had substantial merit, that Rea had no valid defence, or that the public interest in allowing the action to proceed outweighed the public interest in protecting Rea’s expression. Zeppa appealed.
The Court’s Holding
The Court of Appeal (Miller, Favreau, and Rahman JJ.A.) dismissed the appeal. The court held that the motion judge made no reviewable error. The central and dispositive finding was that Zeppa failed to establish grounds to believe that his defamation claim had substantial merit. The court rejected Zeppa’s argument that merely making a complaint to police can, without more, constitute defamation, noting that no case law was put forward to support such a proposition. The fact that the police investigated, found the conduct did not amount to criminal threatening, and closed the file without charges was fatal to the claim.
The court declined to consider the remaining branches of the anti-SLAPP test — including whether Rea’s defence of qualified privilege could have been defeated by malice — as the failure at the threshold merit stage was sufficient to dispose of the appeal. The court added, however, that there is a strong public policy rationale for not discouraging individuals from reporting to police what they genuinely believe to be criminal conduct, even if they are mistaken as to the facts or the law. The public interest in protecting such expression is substantial, and Zeppa had not established harm exceeding minor inconvenience and embarrassment.
On costs, the court found that Zeppa had failed to seek leave to appeal the costs order as required under s. 133 of the Courts of Justice Act, and in any event, the motion judge’s characterization of the lawsuit as strategic — a factual finding open to her on the record — did not meet the threshold for appellate intervention. Costs of the appeal were awarded to Rea in the agreed amount of $20,000, all inclusive.
Key Takeaways
- A police complaint, without more, does not constitute defamation under Ontario law; the mere act of reporting suspected criminal conduct to authorities does not give rise to a viable defamation claim.
- Under Ontario’s anti-SLAPP framework (r. 137.1 of the Courts of Justice Act), a plaintiff’s failure to establish grounds to believe the claim has substantial merit is alone sufficient to warrant dismissal — the court need not proceed to assess valid defences or the public interest balancing stage.
- Strong public policy favours protecting individuals who report potential criminal conduct to police, even where police ultimately conclude no offence occurred; this expression attracts significant public interest protection under the anti-SLAPP regime.
- A party seeking to appeal a costs order in Ontario must obtain leave pursuant to s. 133 of the Courts of Justice Act; failure to do so is a procedural bar to the appeal.
Why It Matters
This decision reinforces the breadth of Ontario’s anti-SLAPP protections in the context of complaints made to public authorities. By confirming that a police report — even one that leads to no charges — cannot without more ground a defamation action, the court sends a clear signal that litigation designed to punish civic participation or reporting to law enforcement faces a high hurdle under r. 137.1. The ruling is particularly relevant to disputes at the intersection of real estate development, municipal politics, and personal conflict, where strategic litigation can have a chilling effect on both public officials and ordinary citizens.
The decision also illustrates the procedural mechanics of the anti-SLAPP regime: a claim that cannot clear the threshold merit requirement will be dismissed at the first step of the analysis, without the need to examine defences or weigh competing public interests. For practitioners, the case underscores the importance of anchoring anti-SLAPP motions firmly in the substantive weakness of the underlying claim, and the corresponding obligation on plaintiffs to bring forward meaningful legal and evidentiary support for each element of their action before the anti-SLAPP inquiry advances further.