Canada: Slapped Down: Early Assessments Of New Tool For Defeating Defamation Cases Are In

The first cases to be decided under new legislation in Ontario designed to curtail defamation claims on matters of "public interest" have begun to be released by the Courts. 

An Act to amend the Court of Justice Act, the Libel and Slander Act and the Statutory Powers Procedure Act in order to protect expression on matters of public interest, the so-called Anti-Slapp legislation, came into force in November 2015.  The legislation provides for summary motions for cases pertaining to expressions that "relate to matters of public interest". Motions must be heard within 60 days, and a reverse onus is imposed on the plaintiff to establish that:

  1. the claim has substantial merit;
  2. the defendant has no valid defence; and
  3. the harm suffered by the plaintiff is sufficiently serious that the public interest in allowing the claim to proceed outweighs the public interest in protecting the expression that was made. 

The plaintiff is responsible for all of the defendant's legal fees for the entire action if the claim is dismissed pursuant to an Anti-Slapp motion.  The early indications are that judges are indeed willing to utilize the legislation to dismiss claims.

Platnick v. Bent, 2016 ONSC 7340

In Platnick v. Bent, 2016 ONSC 7340, released December 1, 2016, the Ontario Superior Court of Justice dismissed a defamation claim against a lawyer arising from a warning issued to other lawyers about a negative experience the defendant had had with the plaintiff, an expert witness.

The Court held that the expression pertained to a matter of "public interest", namely, the administration of justice, and as a result, the plaintiff was forced to meet the reverse onus set out in the Anti-Slapp legislation. 

The Court found that the defendant had valid defences, and that the public interest in protecting expressions concerning the administration of justice outweighed the public interest in allowing the plaintiff's case to continue. In so doing, the Court noted the weak connection between the expression at issue and the plaintiff's damages.

Able Translations Ltd. v. Express International Translations Inc., 2016 ONSC 6785

Meanwhile, in Able Translations Ltd. v. Express International Translations Inc., 2016 ONSC 6785 released in November 2016 and decided by the same judge that decided Platnick, the Court dismissed a defamation claim by a translation company against the principal of another company in the same industry where the defendant had blogged that the public should not support an individual running for office because of his connection to the plaintiff. 

Not surprisingly, the Court found that the subject matter of the expression pertained to a matter of public interest.

The Court ruled that the public interest in protecting expression about an election outweighed the public interest in allowing the case to proceed, noting that it felt the plaintiff had a weak damages claim and questionable motives.

Fortress Real Developments Inc. v. Rabidoux, 2017 ONSC 167

In Fortress Real Developments Inc. v. Rabidoux, 2017 ONSC 167, the Court dismissed a defamation case arising from tweets pertaining to "commercial unfairness; governmental policies and the proper administration of justice ... the regulation of syndicated-mortgages; the activities of private corporations who solicit funds from the general public, and the advertising practices of a commercial establishment."

The Court concluded that the tweets were about a subject of public interest, and that the public interest in protecting such expressions outweighed the interest in allowing the claim to continue because the plaintiff could not clearly establish that damages had been suffered as a result.

1704604 Ontario Ltd. v. Points Protection Assn., 2016 ONSC 2884

The news for defendants has not been all good, however.  In 1704604 Ontario Ltd. v. Points Protection Assn., 2016 ONSC 2884, the Court refused to dismiss a claim for breach of contract arising from testimony given at a tribunal hearing in contravention of an undertaking not to do so in a settlement agreement in an earlier proceeding.

The testimony pertained to the environmental impact of a proposed development, and as such, the Court concluded that it related to a matter of public interest. 

The Court refused to dismiss the claim, however, noting that the plaintiff had suffered significant damages as a result of the breach of the settlement agreement, and that as such the public interest in allowing the claim to continue outweighed the importance of giving testimony at a tribunal hearing in breach of an agreement not to do so.

Concluding Thoughts

Thus far, the Courts have demonstrated an early willingness to utilize the Anti-Slapp legislation to dismiss claims in appropriate circumstances. 

It remains to be seen if the new legislation will become a permanent tool for those defending claims to achieve resolution at an early stage.

It should be born in mind that significant discretion has been given to judges to weigh the public interest of allowing a claim to proceed versus protecting the expression at issue. As such, while the legislation presents an opportunity to potentially bring a quick and efficient end to some claims, the outcome of such motions may depend upon the importance the Court places on allowing the plaintiff to prosecute its action.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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