Executive Summary: Key Legal and Evidentiary Issues

• The anti-SLAPP motion by the defendant was dismissed because the defamation claim met all required legal thresholds.

• Plaintiffs showed there were grounds to believe the defamatory statements had substantial merit and caused both monetary and reputational harm.

• The court found no real prospect of success in the defences raised—qualified privilege, justification, and fair comment.

• Ms. Robinson admitted to creating an Instagram account and sending an email with defamatory statements that contributed to reputational damage.

• The public interest in allowing the defamation suit to proceed was found to outweigh the public interest in protecting Ms. Robinson’s expressions.

• No costs were awarded, as the motion was not frivolous and raised significant issues despite its failure.

Facts of the Case

Diffusart International and its principal, Marc Agostini, have operated a postering business in Ottawa since 1988. Samantha Robinson, who operates under the name Postering Ottawa, has worked in the same industry for over 20 years. While the parties had long competed without incident, tensions escalated in recent years.

Ms. Robinson alleged that Mr. Agostini engaged in a campaign of harassment and intimidation after she refused to sell or join her business with his. She claimed the plaintiffs monitored her, vandalized her posters, created mock advertisements to ridicule her business, and disparaged her to clients. Feeling unsafe, Ms. Robinson relocated from Ottawa to Toronto.

In response to this conduct, Ms. Robinson created a public Instagram account using Diffusart's name and logo to collect and repost negative commentary about the plaintiffs. She also emailed the Mayor of Ottawa and the Ottawa Police Services (OPS) with serious allegations, including harassment and assault, and copied the email to the Ottawa Jazz Festival—a former client of hers and a current client of Diffusart.

On August 21, 2023, Mr. Agostini and Diffusart sued Ms. Robinson and her employee Erica Lackey for defamation. Ms. Robinson then brought an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss the lawsuit.

Legal Analysis and Outcome

Threshold and Merits-Based Hurdles

The court accepted that Ms. Robinson’s communications related to a matter of public interest, satisfying the initial threshold requirement under s. 137.1(3) of the CJA.

However, the plaintiffs met the merits-based burden under s. 137.1(4)(a), showing that:

• There were grounds to believe their defamation claim had substantial merit.

• Ms. Robinson reposted third-party defamatory comments on Instagram and authored a defamatory email to public officials and a client.

• The plaintiffs plausibly showed that Ms. Robinson lacked a valid defence to these statements.

Evaluation of Defences

• Qualified Privilege: The email to the Mayor and OPS was protected, but extending it to the Ottawa Jazz Festival exceeded the scope. The court ruled there was no corresponding duty for the client to receive the email, making the defence inapplicable in part.

• Justification: The court found that while some allegations may have had partial evidentiary support (including affidavits from community members), the core defamatory claim—that Mr. Agostini was a “mentally unstable criminal”—lacked factual foundation. As such, the defence of justification was unlikely to succeed.

• Fair Comment: The comment lacked a sufficient factual basis and could be interpreted as made with malice or reckless disregard. Even if framed as opinion, Ms. Robinson’s personal attacks, particularly the mental health and criminality allegations, undermined this defence.

Public Interest Hurdle

Under s. 137.1(4)(b), the court found:

• Harm Analysis: The plaintiffs presented evidence that they lost 14 clients and suffered estimated damages of $200,000. Defamatory remarks, including those alleging criminal and unstable behavior, were likely to cause both reputational and financial harm.

• Weighing Analysis: The court balanced the harm caused to the plaintiffs against the importance of protecting Ms. Robinson’s expression. It concluded the defamatory nature and personal motives behind the communications—especially targeting a client—reduced their public value.

The judge also found Ms. Robinson’s conduct, though rooted in distress, crossed into retaliatory and harmful territory that diminished the weight of her free expression claim.

Costs

Although the plaintiffs were successful, the court exercised its discretion under s. 137.1(8) and awarded no costs. The judge emphasized:

• Ms. Robinson’s motion raised substantial issues worthy of judicial consideration.

• Her claims of harassment were not unfounded, and Mr. Agostini’s own conduct, including distributing posters mimicking her business with adult content, was described as “disgraceful.”

• Some of the plaintiffs’ claims (e.g., passing off, conspiracy) appeared weak and possibly punitive in nature.

Final Outcome

Ms. Robinson’s anti-SLAPP motion was dismissed. The defamation case brought by Diffusart and Mr. Agostini will proceed. The court ordered no costs, despite the plaintiffs’ success, citing the complexity and mutual misconduct in the case.