Canada: Judge Questions Whether Ontario's "Anti-SLAPP" Law Strikes The Right Balance

In a recent Ontario Superior Court of Justice decision, Justice E.M. Morgan used Ontario's new "anti-SLAPP" laws to dismiss a defamation action against The Globe and Mail (Globe). In doing so, however, Justice Morgan raised concerns about whether the law, as he was required to apply it, fulfills its intended purpose of encouraging participation and expression on matters of public interest by curbing "strategic litigation against public participation" (SLAPP). Therefore, while this decision confirms that media defendants can benefit equally from anti-SLAPP legislation, it raises questions about the ease with which defamation claims may be dismissed early on, even when they involve widely published defamatory statements and no evidence of any "chill" on free expression.  

INTRODUCTION

In Bondfield Construction Company Ltd. v. The Globe and Mail Inc. et al, Bondfield Construction Company Ltd. (Bondfield) sued the Globe for C$125-million in relation to a series of articles arising from an investigation into Vas Georgiou, a senior executive at St. Michael's hospital who had been implicated in financial fraud while he was an executive at Infrastructure Ontario (IO). The articles identified "the undisclosed commercial ties" Georgiou had with the president of Bondfield, and stated that the relationship "cast doubt" on the fairness of the bidding process that resulted in IO awarding a contract for the St. Michael's hospital project to Bondfield. Bondfield argued that the articles wrongly suggested it had benefited from "an unfair or corrupt contract procurement process".

SLAPP MOTION

The Globe moved under section 137.1 of the Courts of Justice Act, enacted in the fall of 2015, which created a means to dismiss an action at an early stage where a defendant can show that the matter involves "expression" that relates to a matter of "public interest". Such cases "shall" be dismissed unless the plaintiff can demonstrate that there are "grounds to believe" that: (1) the action has "substantial merit", (2) there is "no valid defence to the proceeding", and (3) the harm caused by the defamation is "sufficiently serious" that the public interest in continuing with the action outweighs the public interest in protecting the expression.

There was no dispute that the articles related to a matter of public interest, and so the motion turned on whether Bondfield could show that the three exceptions applied. Justice Morgan found that the action had "substantial merit", that the harm caused was serious and that the public interest in continuing with the proceeding outweighed the public interest in protecting the expression. However, because Bondfield had failed to "establish that the Globe has no valid defense whatsoever", as there was "a potentially valid defense of fair comment" on a matter of public interest, he dismissed the action. (Although the Globe also raised the defence of responsible communication, Justice Morgan was not persuaded that defence would be available.)

CONCERNS REGARDING APPLICATION OF LEGISLATION TO BONA FIDE CLAIMS

Justice Morgan expressed "consternation" at this result, as he was not "satisfied that this conclusion truly fulfills the legislative purposes" of discouraging SLAPP suits. He characterized Bondfield's action as "a bona fide attempt to recover losses it claims to have suffered as a result of the impugned series of articles" (although he did note that Bondfield may have brought its losses on itself by associating with Georgiou — an interesting point for trial), and not the type of action designed to unduly limit expression on matters of public interest, targeted by the anti-SLAPP legislation.

The Court rejected the suggestion that the Globe had been "chilled" from publishing more on Bondfield by the litigation, or that the Globe was unduly burdened by being required to have journalists spend time defending the action. The weighing of harms to public interest, Justice Morgan said, "is not designed to ensure that the press can escape liability from the most serious damage that its publications cause".

Justice Morgan's major concern, however, was that by "requiring an otherwise serious and meritorious claim to be dismissed because at this stage a potential defense cannot be eliminated, s. [137.1] of the CJA risks tipping the balance further in the publisher's favor than the anti-SLAPP policy requires." Following an earlier anti-SLAPP decision (Able Translations Ltd. v. Express International Translations Inc.), he held that "[t]he goal is to foster free expression on matters of public interest", not to "create a 'safe space' for defamation".

CONCLUSION

This decision is one of just a few anti-SLAPP decisions involving a media defendant. SLAPP suits typically involve well-funded plaintiffs using law suits to silence vulnerable critics, and that is what the legislation intended. However, there is nothing in the legislation limiting the type of defamation cases, or parties, to whom it should apply. This decision confirms that the anti-SLAPP provisions will apply equally to media defendants, who are already protected by special defences in defamation actions, including statutory defences under the Libel and Slander Act.

Bondfield has indicated that it will appeal the decision. In the meantime, courts and litigants continue to await guidance from the Ontario Court of Appeal, which has reserved judgments in four appeals involving anti-SLAPP motions, heard together in June 2017. These appeals raise issues ranging from the constitutionality of the legislation, the appropriate standard of proof on anti-SLAPP motions, and the appropriate balance to be struck between freedom of expression and reputation in the public sphere.

We wish to acknowledge the contribution of Paul Schabas to this publication.

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