Canada: Court Confirms Government Entities Cannot Sue Critical Citizens For Defamation

Last Updated: February 19 2018
Article by Jacob R.W. Damstra

Two recent decisions arising out of the same case, Niagara Peninsula Conservation Authority v. Smith, provide some important judicial guidance regarding Ontario's relatively new "Anti-SLAPP" provisions in the Courts of Justice Act, R.S.O. 1990, c. C.43. This article considers the Court's dismissal of the defamation actions brought by the Niagara Peninsula Conservation Authority ("NPCA") and others against a private citizen who had raised concerns regarding the Authority's governance pursuant to s.137.1(3): 2017 ONSC 6973. My companion article "Full Indemnity Costs A Powerful Deterrent in Ontario's Anti-SLAPP Regime" discusses the Court's costs award under s.137.1(7): 2018 ONSC 127.

What Are Lawsuits Against Public Participation ("SLAPP")?

Strategic lawsuits against public participation are designed to silence criticisms by burdening the critic with the threat or actual costs of defending a lawsuit. In 2016, the Protection of Public Participation Act came into force creating Anti-SLAPP provisions in the Courts of Justice Act. The purpose of these provisions has been described as protecting persons who speak on matters of public interest, not only from liability and tort, but also from being sued in tort: see United Soils Management Limited v. Mohammad, 2017 ONSC 4450. For a fuller discussion of these Anti-SLAPP provisions and the judicial interpretation thereof, see my previous article "Ontario Superior Court Applies Anti-SLAPP Law to Protect Free Expression on Public Interest Environmental Issues".

Niagara Peninsula Conservation Authority v. Smith

Retired Air Force Major Ed Smith is a citizen and taxpayer residing in the territory under the jurisdiction of the Niagara Peninsula Conservation Authority ("NPCA"). In 2016, Smith compiled a report called "A Call for Accountability at the Niagara Peninsula Conservation Authority" alleging corruption, contract swapping, and other improprieties in the governance of the NPCA and the Niagara Peninsula Conservation Foundation ("NPCF"), a charitable Foundation created by the NPCA to raise money. Smith submitted his reports to the Niagara Regional Police, on the basis that it evinced some level of corruption, and to the Regional Municipality of Niagara, raising concerns of conflict of interest, favoritism, and improper awarding of contracts.

In response to Smith's filing of his report, lawyers for NPCA wrote to Major Smith threatening to sue him for disseminating the report and demanded that Major Smith:

  • deliver a full and unqualified apology and retraction;
  • deliver a written undertaking not to distribute the report to any other person or publically refer to it in the future or make similar defamatory statements; and
  • provide the identity of the authors of the document.

Shortly thereafter, an article was published in Postmedia referring to Smith's report and a letter from NPCA's lawyers. Following further correspondence and press involvement, NPCA and others impugned in Smith's report brought defamation actions against Smith claiming damages against him. Smith moved for an Order dismissing both defamation lawsuits brought against him under s.137.1 of the Courts of Justice Act.

Justice Ramsay granted Smith's motion and dismissed both defamation lawsuits. In so doing, his Honour provided some important judicial commentary on the application of the Anti-SLAPP provisions. Justice Ramsay clarified (at paragraph 44) that once a defendant shows that the subject matter of the defamation claim arises from communication related to a matter of public interest, the action must be dismissed unless the plaintiff satisfies the Court of the following three things:

  1. there are grounds to believe that the proceeding has substantial merit;
  2. there are grounds to believe that the moving party has no valid defence in the proceeding; and
  3. the harm likely to be or have been suffered by the plaintiff is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

In relation to the first question of whether the subject matter of the claim arises from a communication related to a matter of public interest, Justice Ramsay made the following findings in the case before him:

  • it was "beyond question that the expressions in question relate to a matter of public interest, to wit: the governance of the Niagara Peninsula Conservation Authority. It is a body funded by public money. Its action or inaction in its sphere of responsibility can affect public welfare. It has been the subject of controversy" (para. 54); and
  • in relation to the NPCF, "the affairs of a registered charity constitute a matter of public interest. A registered charity linked to a public body such as the Authority is all the more a matter of concern to the public" (para. 55).

With respect to the "substantial merit" criterion, the Court held that there were no grounds to believe that NPCA's action had substantial merit "because as a government entity, it has no right to sue an individual for defamation" (at paragraph 47). In this regard, Justice Ramsay concluded:

  • it is clear that a conservation authority such as NPCA is a government entity (paras. 2 and 48);
  • as a government entity, NPCA "cannot sue an individual in defamation for criticizing it. The Authority has no cause of action at law and therefore cannot show grounds to believe that its action has substantial merit" (para. 51; see also, Montague (Township) v. Page, [2006] O.J. No. 331, at paras. 29-30; Halton Hills (Town) v. Kerouac (2006), 80 O.R. (3d) 577); and,
  • public participation and comment on the governance and administration of conservation authorities is "all the more important" due to the structure and nature of conservation authorities and their governance in this province (para. 53).

Turning to the other plaintiffs, private individuals and entities, the Court also dismissed their defamation actions against Smith. Justice Ramsay held that Major Smith had "an obvious and credible defence: qualified privilege, together with a lack of malice" given the context of the communications in the report submitted to Niagara Regional Police and the Municipal Council.

This case provides important clarity as to the inability of a government entity to bring an action in defamation against a private citizen who is critical of that public body. Justice Ramsay's decision also makes clear that public criticism and commentary on the governance and administration of public entities, such as conservation authorities, is a matter of public interest, regarding which public participation should be expected and protected in accordance with the purposes of the Anti-SLAPP provisions of the Courts of Justice Act.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Jacob R.W. Damstra
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions