United Soils v. Mohammed is the first Ontario judicial ruling to award damages to a defendant under Ontario's anti-SLAPP legislation that was enacted in 2010. The government has been trying to stop misuse of the court with Strategic Lawsuits Against Public Participation, a.k.a. SLAPP lawsuits. These lawsuits are intended to censor, intimidate and silence public critics by burdening a person or group of people with substantial legal costs until they abandon their criticism or opposition. The decision should serve as a warning to individuals bringing SLAPP lawsuits that not only will their case be dismissed, they will be liable for all lawyers' legal fees and a damages award. While Ms. Mohammed was awarded a nominal amount of $7,500 for her emotional stress, the court's remarks in the decision should be a much larger deterrent.
The plaintiff, United Soils, decided to sue Katie Mohammed, a teacher, after she posted her remarks in two Stouffville Facebook groups– one, a secret group called "Stouffville Mommies" and the second, a closed group called "Stouffville Buy and Sell." Due to the group's privacy settings, Ms. Mohammed's remarks were not made to the public at large but to a subset of the public that had joined the groups. Ms. Mohammed posted about United Soils after her local city council voted to amend an agreement it had with the company in regards to a gravel pit that the company operates close to a geological watershed that is the source of drinking water for most of Toronto. The amendment allowed the company to deposit "acceptable fill from small quantity source sites and hydro-evacuation trucks." Ms. Mohammed was very concerned about the amendment as groundwater contamination has occurred in Stouffville in the past. She joined a protest group on Facebook and even attended a meeting on the issue.
Ms. Mohammed was not the first to notice or oppose the amendment. In fact, she had heard about the amendment from a series of tweets about the counsel meeting, posted on the city council's webpage, that suggested that the mayor and a councillor were concerned about the risk posed by what the trucks might deposit on the site. A local newspaper also picked up the story and published it the next day. It was after these public comments that Ms. Mohammed posted in a secret and a closed Facebook group. Her comments stated that she was concerned that contamination could poison her and the town's children. United Soils distinguished its selection of Ms. Mohammed based on her use of the word "poison."
Ms. Mohammed was soon sent a letter by the company's lawyer. The letter demanded that she retract her statement and apologize. Complying with the letter, she promptly retracted her statement and apologized but was sent a Notice of Libel (an allegation of defamation) the next day with a claim against her for $120,000 in damages.
Her lawyer David Sterns, the current president of the Ontario Bar Association, decided to take her case on a contingency basis based on his past submissions to the Anti-SLAPP Advisory Panel, a panel commissioned to limit these types of lawsuits. Due to this Panel's report, the Ontario government amended the Courts of Justice Act to include anti-SLAPP provision s. 137.1. Under this section, if a defendant was successful in an anti-SLAPP motion they would be awarded costs on a full indemnity basis for both the motion and the action (i.e. his or her legal bill would be fully reimbursed by the other side). Section 137.1(9) also allows the court to award damages if the judge finds that the proceeding was brought for an improper purpose.
Justice Lederer found that there was substantial evidence that the lawsuit was brought in an attempt to silence Ms. Mohammed and others in the community who were protesting the amendment. First, Ms. Mohammed had already apologized and retracted her statements, exactly what the letter demanded she do. The company brought four interlocutory motions to slow down the proceedings, many without merit. Soils had even conceded that Ms. Mohammed had made an "expression" "related to a matter of public interest," which is a complete defence to defamation.
Despite forcing the company to pay the other side's (and its own) legal costs as well as a damages award of $7,500, these nominal amounts may not be enough to deter well-heeled individuals and corporations from bringing these lawsuits. As mentioned in an interview with Canadian Lawyer Magazine, United Soils has sued at least two other people in the same community for similar remarks.
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