Police inspector's libel suit against law student dismissed as SLAPP

Case Summary

Cunningham v. Gibson, 2025 ONSC 5504

The Ontario Superior Court of Justice has dismissed a libel action brought by a Thunder Bay police inspector against a Lakehead University law student. The action was dismissed under the province’s anti-SLAPP laws.

In Gibson v. Cunningham, 2025 ONSC 5504, Brochu J held that a social media post by the defendant, Jamie Cunningham, commenting on Human Rights Tribunal of Ontario (HRTO) proceedings about the Thunder Bay Police Service (TBPS), was expression on a matter of public interest. Her Honour further found that Cunningham’s post—which alluded to Inspector Gibson—attracted a defence of justification. Her Honour dismissed Gibson’s action, finding that the public interest in protecting Cunningham’s expression outweighed the limited harm he alleged.

What is a SLAPP?

“SLAPP” stands for strategic litigation against public participation. SLAPP lawsuits—often framed as defamation claims—are traditionally described as proceedings intended to silence critics on matters of public interest by burdening them with costly and protracted litigation.

Ontario’s anti-SLAPP law is found in section 137.1 of the Courts of Justice Act. It allows defendants to move at an early stage to have proceedings dismissed if they meet the test established by the Supreme Court of Canada in Pointes Protection and Bent v. Platnick.

Anti-SLAPP laws seek to strike a balance between free expression and reputational harm by providing a mechanism for defendants in such lawsuits to bring a motion before a judge to have the case dismissed at an early stage of the litigation if it is determined to be a SLAPP.

The legal test under the anti-SLAPP law requires that the defendant first show that the expression at issue in the litigation relates to a matter of public interest. If so, the plaintiff must then satisfy the judge:

(i) that there are grounds to believe that their legal proceeding has substantial merit and the moving party has no valid defence, and

(ii) that the harm suffered by the plaintiff as a result of the expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the free expression at issue.

If the defendant is successful on the anti-SLAPP motion, the legal proceeding is dismissed. If the plaintiff is successful, the legal proceeding continues to move forward to trial.

What is this case about?

This motion decision arises in the broader context of the ongoing scrutiny facing the Thunder Bay Police Service (TBPS) and its senior leadership. The TBPS has faced allegations of officer misconduct, workplace toxicity, systemic racism, and high-profile investigations and criminal prosecutions of senior officers.

A CBC article, published in February 2022, reported that numerous HRTO complaints had been filed which alleged TBPS leaders referred to officers on mental health leave as “broken toys.” The article stated:

According to five of the complaints, a white board at police headquarters lists officers on mental health leave. The complaints say senior officers are known to refer to these members as “broken toys” who’ve taken “sad leave”.

The HRTO claims—while still unproven—cite Gibson as among the officers connected to this allegation.

Over two years after the CBC’s article was published, a lawyer named Alison Craig posted a link to the news article on X, quoting the above passage. Cunningham's post—which is the subject of this action—was posted in response to Craig's post. Cunningham's April 9, 2024 post stated:

The Inspector that had this written on their whiteboard has, since the senior leadership came under investigation by OPP for a laundry list of issues, gone off on stress leave and is now seconded to NAPS as a Superintendent.

Although Gibson was not named in this post, he was the officer then on secondment to the Nishnawbe Aski Police Service (NAPS). NAPS terminated his secondment shortly after, citing the HRTO allegations once they came to its attention. Gibson then sued Cunningham for $975,000, claiming defamation, reputational harm, and lost advancement opportunities.

Cunningham responded with an anti-SLAPP motion, arguing that her post engaged matters of local community and public interest relating to the TBPS and policing in Thunder Bay. Her motion also drew on the open court principle, which applies to HRTO proceedings and is protected by the Charter's section 2(b) freedom of expression. Cunningham asserted that matters before courts and tribunals (and discussion of those proceedings) are necessarily matters of public interest.

What was decided?

Brochu J determined that there were grounds to believe that Cunningham had available a defence of justification, and in any event, that the public interest in permitting her expression outweighed any interest in permitting Gibson's legal action to proceed. Her Honour dismissed the action and ordered costs payable to Cunningham.

Public Interest Threshold

At the first stage of the test, the parties agreed that the expression related to a matter of public interest.

Merits-Based Hurdle

Having determined that the expression related to a matter of public interest, the onus reversed, and it was up to Gibson to satisfy the court that his claim had substantial merit and Cunningham had no valid defence.

On this branch of the test, Brochu J concluded that while Gibson did appear to satisfy the bare requirements to advance a defamation claim, his claim was "weak" given that he was not readily identifiable in the impugned post and the had provided very limited evidence of actual harm caused to him by the publication, most of which consisted of self-serving affidavit statements.

More crucially, Her Honour found that there was reason to believe that Cunningham had available a defence of justification—that there was evidence showing that her statement was "substantially true". Brochu J concluded that Cunningham's post was justifiable, within the context of the Craig post and the CBC article. The article itself clearly identified concerns with senior leadership at the TBPS and made clear that the allegations in the underlying HRTO posts had not yet been proven.

Her Honour accepted that the post was justifiable, noting the context of the article and the live HRTO matters, that Gibson was seconded to NAPS, and that the senior leadership of TBPS had been investigated for various issues. While the statement that Gibson had "gone off on stress leave" was not justifiable, Her Honour concluded that this statement was not defamatory.

While Cunningham also raised a defence of fair comment, Her Honour observed that it was not necessary to address this, but that in any event, Cunningham's post was more reasonably understood as fact assertion rather than commentary, and thus was not recognizable as comment (one of the defining features of fair comment). Nonetheless, Her Honour explicitly rejected Gibson's urging that Cunningham's post was actuated by malice. A finding of malice can defeat a fair comment defence on its own.

Public Interest Hurdle

On the final stage of the anti-SLAPP test, Brochu J concluded that the public interest weighed in favour of permitting the expression rather than allowing Gibson's lawsuit to continue.

At this stage of the test, the plaintiff is required to show that “the harm likely to be or have been suffered by the [plaintiff] as a result of the [defendant]’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.”

Her Honour indicated that she was not satisfied that Cunningham set out to harm Gibson, or that her post was any form of retaliation, as Gibson alleged. She found that there was no evidence that Cunningham had any meaningful interaction with Gibson ahead of the events precipitating the action, nor of any other malicious conduct towards him.

Brochu J stated that "[t]he only evidence adduced by the Plaintiff is based, once again, on self-serving allegations and assumptions of what he believes may have motivated the Defendant to retaliate against him" and that Gibson had "not adduced any concrete and relaible evidence of having suffered humiliation, shame, disgrace, and/or embarrassment." She dismissed the examples Gibson did cite as "his suspicions".

Importantly, Her Honour agreed with Cunningham that the reason for the termination of Gibson's secondment was "a function of NAPS finding out that there were undisclosed HRTO complaints against him"—and not a result of Cunningham's post itself. Her Honour stated that "[w]hether it was the Plaintiff or the TBPS that should have made this information available to NAPS prior to his secondment is beside[] the point. When NAPS acquired this knowledge, they acted in accordance with their policies."

Her Honour also plainly recognized that Cunningham's expression arises within an important public interest context:

When considering the X post as a whole and in the bigger context, it is to inform the public that despite all the ink that has been spilled in the above noted reports and concerns expressed in the public forum, officers that were the subject of the [CBC] Article and HRTO complaints continue to be employed in high-ranking positions. It puts into question and continues the ongoing debate of what is being done to address the perceived injustices and concerns.

The decision also recognized the importance of the ability to criticize senior public officials, without attracting civil liability:

It is in the public interest to be aware of these matters and to be informed of how complaints and matters are being handled. This is a hot topic in the community at large that has also garnered national interest. These high-ranking or senior roles come with benefits, but also the harsh reality of being open to public critic[ism].

The decision closes by noting—per the Supreme Court's guidance in Pointes—that "what is really going on" in this case is that Gibson was upset that the HRTO complaints against him were brought to the attention of NAPS, which resulted in the end of his secondment. Her Honour concluded that "the public interest in protection the expression of the Defendant outweighs any harm that the Plaintiff likely has suffered or will suffer as a result of the expression."

What happens next?

Gibson's defamation lawsuit against Cunningham was dismissed. As the successful party, Cunningham is entitled to costs. Section 137.1(7) of the Courts of Justice Act typically awards the moving party (the defendant) their full costs if they are succesful on the motion.

Final Comments

A preliminary issue on this motion was the admissibility of numerous affidavit statements made by Gibson which were alleged to be inpermissible legal conclusions, unqualified expert evidence, speculation as to the motives of others, impermissible evidence as to the state of mind of others, and factual assertions with no basis as to belief is offered. While Brochu J declined to enter into a line-by-line analysis of these objections, she ultimately gave this evidence little weight.

Any shortcomings in Gibson's evidence may have been fatal. Having conceded the public interest threshold question, the onus on the motion was reversed and it was incumbent on him to marshal a strong evidentiary footing to defeat Cunningham's motion. He did not do so.

Notably, the decision acknowledges that proceedings before the HRTO are subject to the open courts principle, which is endowed with the constitutional protection of section 2(b) of the Charter. Given that the social media expression at issue related to tribunal proceedings, it is curious that the decision engages in very little discussion of the interplay between the open court principle at the public interest balancing stage of the analysis.

The successful defendant on this motion was represented by Douglas W. Judson of Judson Howie LLP.

For more information, please contact:

Douglas W. Judson (he/him)

Judson Howie LLP

Email: doug@judsonhowie.ca