Derivative Action Dismissed & Motion to Dismiss Defamation Reserved
- Leah Dyck
- Apr 17
- 7 min read
Updated: Apr 22
Today was my big court day for my Motion to Dismiss Barrie Housing’s defamation lawsuit, as well as my Application for leave to commence a derivative action.
As outlined in the title of this post, my derivative action was declined. Justice Fraser hasn’t provided reasons yet, but when she does, I’ll post them here. She did make a brief comment saying that I didn’t meet the requirements. I’ll get back to this shortly.
No costs have been assigned yet.
Keeping in mind that I have zero legal background, I’ll provide my take on what I got out of today’s hearings.
The ‘Nazi’ Comment
When I say “I don’t know how it went” its because Justice Fraser asked me, at least twice, to make the correlation between ‘Nazi’s’ and Barrie Housing’s actions. Admittedly, I don’t think I satisfied her question. I did try though. I think my perspective of Barrie Housing is different than the average tenant because I’m looking at what’s happening to Barrie Housing’s tenants from the perspective of a service provider who’s worked with many tenants across many of Barrie Housing’s different housing projects over the course of three years. When I started interviewing my food security program’s recipients back in 2022 (to find out more about their individual situations, to share with the public), that’s when I started seeing patterns. Additionally, since 2019, four people on my floor have died. And when you look at Barrie Housing’s vacancies data, my building is one of Barrie Housing’s top three (out of 14) buildings with the most deaths. I then went on to say that it's no stretch of the imagination to say that I live in a death camp. Justice Fraser’s response to that was: "that’s not what comes to mind when I think of a death camp." I tried to explain that from my perspective, it is, because no matter what I do, I can’t get out. I explained how successful my food charity was, and how raising nearly $10K/month for 19 consecutive months still wasn't good enough for the County. From my perspective, if my accomplishments still can’t get me out of poverty, then nothing can. I feel forced to be here. I feel that no matter what I do, and no matter how hard I work, and no matter how much better my performance metrics are than everyone else’s (in terms of achieving my charitable purpose), I’m trapped here, and I’m going to die here (despite my excellence).
In a defamation lawsuit, it matters if the words complained of are believed or if they were said in reckless indifference to their truth.
Why Did Barrie Housing Accept My Rent Payments for 5 Years While ODSP Also Paid My Rent?
This is one of the questions Justice Fraser asked Barrie Housing. And Barrie Housing was not able to answer. At one point, Justice Fraser asked Barrie Housing for its response to the potential argument that I may be a whistleblower (she pointed out that she wasn’t saying I was a whistleblower, but rather, she was asking for a response to this proposed argument). Justice Fraser went on to say that marginalized people have a history of not being listened to, when they've been wronged. I don’t recall what Barrie Housing’s response was. It did respond, but not in a meaningful way (in my opinion).
Justice Fraser also asked Barrie Housing’s lawyer to define the standard of “being a matter of public interest” and asked if the argument could be made, that, if I was overcharged, couldn’t others have been overcharged too? Again, Barrie Housing was not able to answer this, although it insisted this case was not on a matter of public interest and it was simply a matter between two private parties.
No Harm
Another point that I brought up was that Barrie Housing hasn't been harmed. In order to sue me for defamation, Barrie Housing needs to prove that its been harmed by my words. Barrie Housing says I inspired vandalism at the Coulter Glen property. I presented evidence to dispute the “vandalism”, saying it could have been caused from something else. At this point during the hearing, Justice Fraser commented that my posts support an underlying thread, which is that, Barrie Housing staff doesn’t address issues raised by its tenants.
Barrie Housing also argued that my words make it hard for it to retain staff. But again, it didn’t provide evidence of that either. However, I think its safe to assume that calling its staff Nazi’s has the potential to make retaining staff harder.
So what I think it comes down to, is, did I go too far by calling Barrie Housing staff Nazi’s?
Criminal Wrongdoing
Justice Fraser did not use the word “criminal” at any point today. But my take, based on her questions she asked Barrie Housing, is that Barrie Housing has committed criminal wrongdoings, but perhaps she doesn't think its to the extent of being “war crimes” or “crimes against humanity”.
Here's the thing, though, if Barrie Housing staff are convicted of fraud, they could go to prison, depending on the charges. This is what happened with NYCHA (the New York City Housing Authority), late last year. Last year, 70 current and former NYCHA staff went to prison for allegedly accepting cash payments from contractors in exchange for awarding NYCHA contracts. And in early last year, NYCHA was being sued in a class action for the same things I'm accusing Barrie Housing of today. Again, I don't know anything about the law, but what if it turns out that Barrie Housing overcharged thousands of its tenants of their essential living benefits, for a decade, since 2015 is when the Ministry of Children, Community & Social Services, which administers the Ontario Disability Support Program, started offering the 'pay direct' service? What would that be called? And then what about the overcharges regarding the CPP Disability payments? There's no limit on how long that scheme has been going on for.
Back to the Derivative Action
When I presented my argument for my derivative action, I told Justice Fraser that the sole purpose of me seeking leave to commence a derivative action was to get an investigation into Barrie Housing, for Barrie Housing’s other tenants to get their money back (and for me to get all my overcharged monies back). I also said that there's no other way for me to get an investigation, and that there are no legal resources available to me (for civil cases).
I’m hoping that I’m wrong, and that there is another way to get an investigation. I realize that if I were granted leave to commence a derivative action against Barrie Housing, it would have set a new precedent. I get why Justice Fraser may not have wanted to do that. However, based on Justice Fraser’s questions today, I’m under the impression that she believes its possible that other tenants could have been overcharged too. And if she’s anything like Justice McKelvey, I don’t think she’s just going to walk away, knowing others may have been overcharged too.
Why Am I Comparing Justice McKelvey to Justice Fraser?
In this online article, dated May 19, 2022, Justice Fraser was appointed to be a Judge in the Superior Court of Justice of Ontario in Newmarket. This article said that Justice Fraser replaced Justice McKelvey, who elected to become a supernumerary judge. When Barrie Housing’s defamation case was assigned to case management, it was Justice McKelvey who assigned it to Justice Fraser. And after looking-up Justice Fraser’s legal background, I think its safe to say that Justice McKelvey assigned Justice Fraser to my case because Justice Fraser specializes in mental health law and clearly, I have mental health problems. Just being honest. In my defence, though, after everything I’ve been through, though, how could I not have mental health problems?
The last time I was in front of Justice McKelvey was on March 18, 2025. That day, I sat in his virtual courtroom for the whole day, and for the first time, I got to witness other cases (with all the other judges I was in front of, we had to wait in the virtual waiting room so we couldn’t hear other people’s cases). There were two cases that day, that really stood out to me. One was of a man and his landlord. The man hadn’t paid his rent in a while, and his landlord wanted to evict him. This man had a wife and five kids. And I remember Justice McKelvey asking the landlord’s lawyer; “You want to evict him and his wife and his five kids”? And when the lawyer said “yes”, the look on Justice McKelvey’s face was, to me, one of disgust. Eventually, this man and his landlord’s lawyer went to a private virtual room to workout a payment plan.
The other case that stood out to me was one with Scotiabank. I can’t remember the specific details on why, but Scotiabank needed to disburse $61,000.00 to five adult siblings. I assume it was an inheritance. Scotiabank was able to locate three out of the five siblings and distribute $61,000.00 each, to these three siblings, but Scotiabank could not locate the two other siblings. Scotiabank said these two siblings were not on speaking terms with the three other siblings. Justice McKelvey asked Scotiabank what it had done to track down these two “missing” siblings. Scotiabank went on to say it retained a private investigative firm to look for them. Justice McKelvey asked what this private investigative firm did, specifically, to try to find these two siblings. Scotiabank explained how it conducted two driver’s license checks, emailed and mailed letters to the siblings, and admitted they were in contact with at least one of the “missing” siblings as recently as 18 months ago, but had since lost contact. Scotiabank admitted this was strange because it “wasn’t trying to take money from them but was trying to give money to them”. In the end, Justice McKelvey told Scotiabank he didn’t think it tried hard enough to locate these two siblings and told Scotiabank to try harder, and instructed Scotiabank to call the other three siblings back and try harder to find the whereabouts of the two “missing” siblings.
I’m saying all this because, I think, if Justice McKelvey heard my case today, he wouldn’t “do nothing” and if Justice Fraser is anything like Justice McKelvey, then I don’t think she’ll “do nothing” either.
Anyways, thats just what I got out of today’s hearings.
I haven’t lost yet. I may not have won my case for the derivative action, but it doesn’t necessarily mean an investigation won’t happen.
Once I get Justice Fraser’s reasons for declining my derivative action, and her decision for my Motion to Dismiss the defamation lawsuit, I’ll post it here in my blog post, as well as on my ‘Derivative Action’ and ‘Defamation’ pages. Her endorsement to reserve my anti-SLAPP motion (and dismiss my derivative action) was posted to case lines on April 22, 2025:
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