Executive Summary: Key Legal and Evidentiary Issues

• Two related Ontario Superior Court decisions address a securities exchange's bid to stop an online defamation and harassment campaign by a shareholder objected to as unsuitable for a listed issuer's board.
   
• Jurisdiction was contested because the respondent lives in the United States, but the court found a real and substantial connection to Ontario through emails sent to people in the province and his eventual attornment to the proceeding.
   
• Central to both rulings was whether the respondent's hundreds of social media posts, emails, and a YouTube video met the legal test for defamation.
   
• Defences of justification, fair comment, and responsible communication on matters of public interest were all considered and rejected due to malice and a lack of factual grounding.
   
• Evidentiary weight was given to the respondent's own admissions, his refusal to acknowledge any wrongdoing, and his financial motive as a stock promoter rather than a journalist.
   
• Remedies escalated from an interim injunction restraining specific defamatory language to a permanent injunction with a takedown order, though the court declined to impose a total ban on any future mention of the applicant.
   

Facts of the case

CNSX Markets Inc. operates the Canadian Securities Exchange (CSE), which is recognized by the Ontario Securities Commission and the British Columbia Securities Commission. Jack Marks, also known as Jacob Mestechkin, is a shareholder of New World Solutions Inc. (NWS) who controls and publishes The Wall Street Report[er] and authored a 2022 book on stock promotion. In January 2024, the CSE Listing Committee found Marks unsuitable to act for a CSE-listed issuer, though that decision was never communicated because the arrangement ended first. Months later, NWS announced Marks would chair its board, prompting the CSE to discover his dual identity and, in October 2024, formally object to his acting as a director, officer, promoter, or significant shareholder of any CSE-listed issuer. Marks unsuccessfully appealed to the CSE's board and then sought review before the Capital Markets Tribunal, with a hearing scheduled for May 2026.

Around the same time, Marks began publishing hundreds of posts and messages targeting the CSE and named personnel, including its CEO, its Chief Legal Officer, a Vice President, and two Senior Vice Presidents, later expanding to include a CEO's spouse. His publications accused these individuals of fraud, corruption, criminal conduct, and ties to a convicted sex offender, and he also telephoned and emailed CSE staff directly. The CSE applied for an interim injunction, which Justice Merritt granted on April 7, 2026, restraining Marks from contacting CSE personnel and from using an enumerated list of defamatory words and phrases. The CSE then sought a permanent injunction and a takedown order, which Justice Mathen decided on July 8, 2026, following a hearing at which Marks represented himself.

Policy and legislative provisions at issue

The interim injunction was grounded in section 101 of the Courts of Justice Act, which empowers the court to grant an interlocutory injunction where it is just or convenient, and Rule 40.01 of the Rules of Civil Procedure, which permits such relief to be sought by motion. Both decisions applied the common law elements of defamation from Grant v. Torstar Corp.: that the words were defamatory, referred to the plaintiff, and were published to at least one other person. The courts also considered the defences of justification, fair comment (as defined in Upper Canada District School Board v. Gilcig), and responsible communication on matters of public interest, weighing factors such as the seriousness of the allegations, their public importance, and whether the speaker acted with journalistic diligence. For the permanent injunction, the court applied the test from Astley v. Verdun and the Court of Appeal's guidance in Labourers' International Union of North America, Local 183 v. Castellano, which requires that any injunctive conditions be reasonably necessary to prevent a continuing defamation campaign and that a blanket prohibition be reserved for someone incapable of distinguishing legitimate criticism from defamation.

Reasoning and analysis

On jurisdiction, Justice Merritt found a serious issue to be tried given strong evidence that Marks had sent defamatory emails to Ontario recipients, and Justice Mathen later confirmed the point, adding that Marks had attorned to Ontario's jurisdiction by responding to the application on its merits rather than confining himself to a jurisdictional challenge. Both judges found the publications clearly defamatory, noting that Marks repeatedly accused CSE personnel of fraud, criminal conduct, and personal misconduct, including baseless allegations linking the CEO to a convicted sex offender. Justice Merritt held that any defences of justification or fair comment would inevitably fail because the statements were false and malicious rather than honest opinions grounded in fact. Justice Mathen reached the same conclusion at the permanent injunction stage, further finding that Marks could not rely on responsible communication because his reporting was not genuinely about matters of public interest, lacked journalistic diligence, and was motivated by his personal grievance against the CSE and his interest as a stock promoter rather than a reporter.

In assessing the permanent injunction, Justice Mathen found it likely that Marks would continue publishing defamatory material, citing his continued campaign after the interim order, his refusal to acknowledge that any statement was wrongful, and his unwillingness or inability to distinguish legitimate criticism from defamatory comment. She concluded that Marks met the threshold from Labourers' International Union of North America, Local 183 v. Castellano for a blanket prohibition. Even so, she declined to impose a total ban on any future mention of the CSE itself, reasoning that the applicant is a public regulator that must remain open to legitimate criticism and that the profound constitutional importance of freedom of expression counselled restraint. Instead, she continued the specific list of prohibited words and phrases from the interim order, added a prohibition on using social media tags or hashtags referencing the CSE, and ordered removal of specifically identified posts.

Ruling and overall outcome

The interim injunction, granted by Justice Merritt, restrained Marks from contacting CSE officers, employees, and their families pending the hearing, and from making public defamatory statements using an enumerated list of terms and accusations about the CSE or its personnel. On the permanent motion, Justice Mathen granted the CSE's request in part: Marks was permanently enjoined from making public allegations about CSE personnel and from contacting them except through counsel, was ordered to continue observing the list of prohibited words and phrases, was barred from using tags or hashtags in any future commentary about the CSE, and was required to remove, within thirty days, the specific statements identified by the applicant in its evidentiary exhibit. The CSE's request for a blanket injunction preventing Marks from ever mentioning the CSE again was dismissed, though without prejudice to renewing that request if the defamatory conduct persisted. The CSE had not sought monetary damages, and the amount of any costs award was left for the parties to resolve through written submissions if they could not reach agreement.