A $6-million lawsuit against a Guelph couple that stems from a series of Tweets had its first appearance in court Wednesday.
The plaintiff in the case, Probhash Mondal and his company Guelph Medical Imaging (GMI), filed a lawsuit against Stephanie Marie Evans-Bitten and Kathryn Evans-Bitten after Stephanie tweeted what he believes are defamatory and libelous statements.
In response the couple filed an anti-SLAPP (strategic lawsuit against public participation) motion, feeling the lawsuit is a move to bully and silence legitimate and criticism.
Wednesday's Zoom court appearance was a chance for both sides to present evidence on the anti-SLAPP motion.
Justice Edward M. Morgan presided over the matter, hearing from the defence that this case involves fair comment, as well as an element of bullying and underlying malice used to intimidate the couple.
The defence, headed by Marcus McCann a lawyer with Millar & Company, argued the tweets from Stephanie fell under a fair comment defence which constitutes an opinion that any person is capable of holding based on fact, with no actual underlying malice.
The criticism was in response to tweets Mondal himself had made.
McCann pointed to a series of tweets Mondal posted from his official Guelph Medical Imaging Twitter account, which touched on political issues, including what the couple says were negative posts on LGTBQ+ themes.
McCann alleges the lawsuit filed by Mondal was not an attempt to carefully and methodically litigate alleged defamation, but instead designed to bully and intimidate.
“Had Mrs. Evans-Bittens apologized for this Tweet we wouldn't be here, and so I am prepared today to make submissions on why the June 11 Tweet is not defamatory, or if it is, that the defence, especially of fair comment, applies such that Mr. Mondal can not meet his burden at the second stage of the anti-SLAPP test,” said McCann.
Fair comment requires the comment not be based on malice, which McCann said there is no evidence of. He also said we don't have to guess as to what Stephanie's motivation was as she describes her intentions in the tweet.
The main tweet in question, on June 11, 2021, came from Stephanie's @ScurvyCompanion Twitter account reading: “This #PrideMonth2021, I want to remind #Guelph leaders that gay residents in the city are being forced to seek healthcare diagnostics in other cities because Guelph Medical Imaging is owned and lead by a man who thinks and tweets this stuff:”
The tweet was deleted less than a week after it was posted.
In following with the intent to bully, McCann told the court it was important to note that the claim against Kathryn was completely void of content, which Justice Morgan agreed with.
McCann brought forward a tweet from Mondal that showed Prime Minister Justin Trudeau waving a Canadian flag with the red side strips replaced by rainbows, with the Tweet reading in part “please don't defile our flag.”
McCann pointed out defile is a strong word to use when speaking of an altered flag.
Arguing on behalf of Mondal, John J. Chapman, a lawyer with Miller Thompson, said some general observations in cases like these arise when trying to balance one's reputation against someone's right to speak out against what others may believe to be homophobic.
He said three harms exist: the loss of a pharmacy lease, drop in referrals to Mondal's imaging business and general loss of reputation.
The defence argued the loss of revenue was very speculative, and the loss of reputation, if any, was due to Mondal's own words.
Chapman said if you look at it from his client's point of view, he is a family man, businessman, involved with charity work with a mental health focus, he is not a politician, he is a person like millions of other Canadians.
“When he was called a homophobe he reacted, and he reacted strongly,” said Chapman.
“He’s a regular person who has been accused publicly of homophobia and forcing gay patients in Guelph to go elsewhere for their diagnostic services,” said Chapman.
Chapman's primary submission was that motivation and malice can’t be determined, saying we have to look at the facts we have and the matter should proceed.
“Mrs. Evans-Bitten was apparently a former patient and she doesn't say anything in her affidavit about her being treated in any inappropriate fashion when she was actually getting her treatment,” said Chapman. “So, we are dealing with a case where there may be legal protection if they got it wrong, but my respectful submission is we are dealing with a case where factually they did get it wrong.”
Chapman pointed out the timeline of the tweets show Mondal did not proceed further after the initial series of Tweets in 2019, however, Stephanie came back in 2021 with malice and accused Mondal of homophobia.
It was at this point Mondal had left Stephanie alone, and of her own will, she may have crossed the fair comment line in 2021 when she again restarted tweeting about him.
Chapman pointed out that Mondal did not initiate a lawsuit when the tweets first came out. However, when the accusations against him came out and began to implicate his business he was left with no choice.
Morgan said this case is interesting but sensitive and that a decision on the motion will be made soon.
