Canada: Libel By Tweet: Ontario Court Of Appeal Upholds Dismissal Of Twitter Libel Claim Under Anti-SLAPP Legislation

Last Updated: October 8 2018
Article by CyberLex Blog and Maureen Gillis

Most Read Contributor in Canada, September 2018

Twitter's medium of character-limited posts lends itself to pithy, punchy statements—and, as is well documented, many of its users don't pull any punches in expressing their views on the platform. But does it take more than 280 characters to be liable for libel? A recent decision from the Ontario Court of Appeal (ONCA) adds to the growing body of Canadian case law confirming that tweets certainly can be libelous, though protections exist for comments on matters the court finds to be of public interest, including through anti-SLAPP legislation.

Defamation: Elements and Defences

To prove defamation (including its written form, libel), a plaintiff must prove all of the following on a balance of probabilities:

  1. that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person;
  2. that the words in fact referred to the plaintiff; and
  3. that the words were published, meaning that they were communicated to at least one person other than the plaintiff

(Grant v. Torstar Corp., 2009 SCC 61).

There is no need to prove that the defendant intended to do harm, or that the allegedly libelous comments were false or caused damage.

If the above elements are made out, the onus shifts to the defendant to present an effective defence. Available defences include privilege (which may be of an absolute or qualified nature), fair comment, justification, and responsible communication on matters of public interest.

Anti-SLAPP Legislation

In some jurisdictions, legislation has been introduced to try to balance the right for a party to defend its reputation against defamation with the importance of protecting freedom of expression, particularly on matters of public interest. So-called "anti-SLAPP" legislation is designed to deter "strategic lawsuits against public participation", typically characterized as attempts to use litigation to silence criticism, often launched by parties with greater financial means to pursue litigation than their critics. In Ontario, the Protection of Public Participation Act, 2015, introduced new provisions to Ontario's Courts of Justice Act (CJA) that allow for expedited dismissal of proceedings that limit freedom of expression on matters of public interest.

Fortress Real Developments Inc. v. Rabidoux

Background

In the recent case of Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686, rather than filing a statement of defence, the defendant moved for a dismissal pursuant to s. 137.1 of the CJA. Section 137.1(3) of the CJA requires a judge to dismiss a proceeding if the defendant has satisfied the judge that the proceeding arises from an expression that relates to a matter of public interest. However, even if a matter of public interest is engaged, a proceeding will not be dismissed if the judge is satisfied that there are grounds to believe that (a) the proceeding has substantial merit, (b) the moving party has no valid defence in the proceeding, and (c) the harm likely to be (or have been) suffered by the defendant is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression.

The appellants in Fortress, which included Fortress Real Developments Inc., Fortress Real Capital Inc. and two of their senior officers and directors (collectively, "Fortress"), operate a real estate development business financed in part by syndicated mortgages. Fortress was engaged in an ongoing Twitter war dating from fall 2014 through early 2016 with the defendant, Ben Rabidoux, involving an exchange of what the Court called "trash talk". In the course of the exchange, Mr. Rabidoux, a critic of certain forms of real estate investment, including certain kinds of syndicated mortgages, posted tweets impugning some of Fortress' business practices that Fortress alleged were libelous.

After a complaint from Fortress' lawyers and subsequent retraction of statements he had tweeted in fall 2014, Mr. Rabidoux posted a series of tweets in February 2015 that referred to a Globe & Mail article detailing proceedings before the Ontario Securities Commission ("OSC") and the British Columbia Securities Commission regarding market manipulation of shares in an oil and gas company – proceedings that had involved two of the Fortress parties, among others. The Fortress parties alleged that the tweets had improperly implied that they had been implicated in this market manipulation. In response to a libel notice issued by Fortress' counsel, Mr. Rabidoux agreed in March 2015 to retract his tweeted statements and not to make further comments of any kind regarding Fortress in exchange for a release. He also agreed that if he breached his promise not to make further comments, he would pay damages of $10,000 representing the legal fees incurred by Fortress up to that date to address Mr. Rabidoux's previous comments.

In December 2015 and January 2016, Mr. Rabidoux posted tweets that made sarcastic remarks about the real estate markets in Calgary and Winnipeg, cities in which Fortress had significant real estate projects, making predictions that the OSC would assume responsibility for regulating syndicated mortgage investments and that "shadier operators" would face issues, particularly those that had previously been sanctioned by the OSC. Although the tweets did not refer directly to Fortress, Fortress alleged that in the context of the earlier tweets, the comments would be taken to refer to Fortress, and they commenced an action alleging libel as well as breach of the March 2015 settlement agreement.

Because Mr. Rabidoux had moved to dismiss Fortress' claim under s. 137.1 of the CJA, the onus was on him to show that the impugned tweets related to a "matter of public interest". The motion judge found that the subject matter of the tweets, which related to OSC violations, syndicated mortgages, and condo developments, could be properly characterized as matters of public interest. Fortress therefore had to demonstrate that the harm suffered by Fortress was sufficiently serious that the public interest in permitting the proceeding to continue outweighed the public interest in protecting Mr. Rabidoux's expression. Finding that Fortress had failed to establish specific damage or harm it had suffered due to the tweets, the motion judge allowed the motion to dismiss.

The Appeal

Fortress appealed the dismissal, arguing that the motion judge should have interpreted "matter of public interest" more narrowly in the context of a plaintiff's established right to sue for defamation, and that the CJA provisions are only intended to protect "responsible" and "legitimate" expression on matters of public interest. The ONCA disagreed, finding that a broad reading of "public interest" was appropriate and that the merits, manner, or motive of the expression were not relevant to an objective analysis of whether the expression relates to a matter of public interest. The Court found that the tweets were intended to educate the public about investment risks, which was a matter of public interest.

Fortress also argued, among other things, that the motion judge unduly limited her analysis to evidence of specific damages and failed to consider the nature of the public interest engaged in protecting the expression in the tweets, which Fortress characterized as "insults or invective intended to harm" Fortress. While the ONCA agreed that the motion judge's "public interest" analysis was deficient in some respects, it found that the appropriate standard of proof was a balance of probabilities and that the judge's focus on the absence of evidence of monetary damages suffered by Fortress was appropriate. Given that the evidence of damage "consisted almost entirely of [one of the appellants'] unsubstantiated opinion as to the effect of the tweets", the motion judge was justified in finding the evidence inadequate.

With respect to whether the motion judge should have considered damages for breach of the existing contract between Fortress and Mr. Rabidoux in her analysis, the ONCA found it relevant that, rather than being designed to provide finality of litigation for the parties, the agreement Fortress required Mr. Rabidoux to sign contained sweeping language that suggested its primary aim was to silence Mr. Rabidoux in the expression of his views, which again favoured the findings of the motion judge's "public interest" analysis.

Lastly, the ONCA found that the tone and content of the impugned tweets, while at times sarcastic, did not provide grounds to conclude that the tweets were deliberately false or intended to mislead, and therefore retained the inherent value attributable to expressions on matters of public interest.

Based on all of the foregoing, the ONCA found that Fortress had failed to show that the harm causes by the tweets was "sufficiently serious" to outweigh the public interest in protecting Mr. Rabidoux's right to freedom of expression. Moreover, the ONCA found that the "starting point" established under s. 137.1(7) with respect to costs awards is that a defendant successful in a motion to dismiss under s. 137.1 should be awarded costs on the motion and in the proceeding on a full indemnity basis, though such an award is ultimately subject to the discretion of the judge.

Takeaways

Snipes between parties on Twitter, regardless of brevity, can still readily provide sufficient material for a defamation claim. However, as the Fortress case demonstrates, as with allegedly defamatory content in other media, Canadian courts will give greater deference to statements found to be made on matters of public interest. In Ontario, anti-SLAPP provisions in s. 137.1 of the CJA enable defendants to move to dismiss a defamation claim pre-trial, before even filing a statement of defence, in cases where the impugned expression relates to a matter of public interest, foregoing the need to mount a defence of responsible communication on matters of public interest. The Fortress case clarifies the standard for such a dismissal, supports a broad and objective interpretation of "matters in the public interest", and affirms that evidence of more than nominal damages will typically be required to establish that the harm suffered by a plaintiff is "sufficiently serious" to outweigh the public's interest in freedom of expression on matters of public interest. The case will also be of interest in British Columbia, where the provincial government has recently introduced similar anti-SLAPP legislation expected to be debated in the legislature this fall.

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