SLAPP Suits and Anti-SLAPP Legislation
A strategic lawsuit against public participation – a “SLAPP” suit – or “gag proceeding”, is a tactic employed by corporations or well-resourced individuals to silence critics and suppress public participation in debate or publication on matters of public interest of concern to those parties. The purpose and frequent effect of these SLAPP suits, often filed as defamation claims (either libel or slander) is that the target would exhaust their finances and energy in defending themselves, and to remove themselves from taking part in any further public debate of the issue at hand. As a result, other critics may refrain from speaking out for fear of the same retribution.
As an unfortunate result of SLAPP actions becoming all too common, Ontario introduced the Protection of Public Participation Act, 2015, S.O. 2015, c. 23 (Bill 52) which came into force in November 2015. The Protection of Public Participation Act, 2015 amended the Courts of Justice Act, R.S.O. 1990, c. C.43, the Libel and Slander Act, R.S.O. 1990, c. L.12 and the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 in order to protect expression on matters of public interest.
The amendments to the Courts of Justice Act create a summary procedure for the target of a gag proceeding to move before the court to have such a lawsuit1 dismissed. These new provisions are less than two years old, and ripe for judicial interpretation.
United Soils Management v. Mohammed
In a recent case, United Soils Management Ltd. v. Mohammed, 2017 ONSC 4450,2 Justice Lederer provides a thorough and helpful interpretation of the new provisions in sections 137.1 to 137.5 of the Courts of Justice Act.
Katie Mohammed is a schoolteacher who lives in the Municipality of Whitchurch-Stouffville. In September 2016, Ms. Mohammed became concerned about the potential environmental and health impacts of an amendment to an agreement between the Municipality and United Soils Management Ltd. United Soils operates a gravel pit near Musselman’s Lake on the Oak Ridges Moraine, an environmentally sensitive area which is the source of drinking water for much of the City of Toronto and Greater Toronto Area. The amendment allowed for deposition in United Soil’s gravel pit of “acceptable fill from small quantity source sites and hydro-excavation trucks [i.e. hydrovac trucks].”
Ms. Mohammed became aware of this amendment and, along with other residents, including the mayor and a councillor of the Municipality, had concerns about the risk posed by what these trucks might deposit in the site and the potential for spreading contamination. As a result of her concerns, Ms. Mohammed posted messages in secret and closed Facebook groups advising the members of those groups of the amendment to the agreement and her concern that “United Soils looks to make $4.1 million in the deal, where Stouffville would only make $108,000 – to potentially poison our children” (emphasis added). Her posts instigated discussion within those Facebook groups in which Ms. Mohammed again made reference to “poison” in relation to United Soils’ actions.
A few days later Counsel for United Soils wrote a letter to Ms. Mohammed suggesting that her posts were false, malicious, and defamatory, and demanding that she cease making further libelous or slanderous representations and deliver a complete retraction and apology. Counsel’s letter enclosed a Notice of Libel under section 5 of the Libel and Slander Act, and indicated United Soils intention to commence an action in defamation against Ms. Mohammed.
Ms. Mohammed immediately issued a retraction and apology to all those who had received her posts. Still, United Soils sued Ms. Mohammed, claiming damages of $120,000 in a statement of claim served just three days after the Demand Letter, with which Ms. Mohammed complied. All of this happened amidst widespread public interest and concern regarding the amendments, including media coverage and disagreement amongst the municipal councillors themselves concerning the potential risks of the new provisions of the agreement.
This factual matrix led Justice Lederer to ask rhetorically:
In the face of all of this attention and expressed concern one has to wonder why, especially with the apology and retraction in hand, United Soils Management Ltd. would continue with this law suit. Could it be an effort to limit the public discussion? Was it a response to the efforts apparently underway to have the Council of the Town of Whitchurch-Stouffville overturn its decision to amend the agreement? Was the objective to limit, if not control, public debate? What other individual would risk making public comment for fear of being confronted by an action such as this one?3
Ms. Mohammed asked herself the same questions and brought a motion under the new section 137.1(3) of the Courts of Justice Act to dismiss the proceeding against her on the basis that United Soils’ lawsuit arose from an “expression” she made “that relates to a matter of public interest.”
The Protection of Public Participation Act, 2015 amended the Courts of Justice Act to include a number of new sections under the title “Prevention of Proceedings that Limit Freedom of Expression on Matters of Public Interest (Gag Proceedings)”. The policy rationale for these amendments, Justice Lederer pointed out, is confirmed in section 137.1(1):
The purposes of this section and sections 137.2 to 137.5 are,
(a) to encourage individuals to express themselves on matters of public interest;
(b) to promote broad participation in debates on matters of public interest;
(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.
Justice Lederer summarizes that section 137.1 makes “plain the desire that people be encouraged to take part in our public debates without fear of unwarranted reprisal in our courts and authorizing the Court to hear motions to deal summarily with such actions.” He also notes that the new sections provide guidance as to how motions brought under section 137.1(3) are to be decided.4
Section 137.1(3) makes clear that the moving party has the initial burden to demonstrate to the judge that the action arising from an “expression” related to a matter of “public interest”. If the moving party establishes these two criteria, dismissal of the proceeding is mandatory, subject to subsection (4). “Expression” is defined in section 137.1(2) as “any communication, regardless of whether it is made verbally or non-verbally, whether it is made publically or privately, and whether or not it is directed at a person or entity.” In this case, United Soils conceded that Ms. Mohammed’s posts were both an “expression” and made in relation to a matter of “public interest”.
The onus then shifts to the responding party to satisfy the judge that the proceeding should not be dismissed by demonstrating certain criteria set out in Section 137.1(4):
A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,
(a) there are grounds to believe that,
(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the proceeding; and
(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
The wording of this section indicates that this is a conjunctive test; in other words, the responding party must demonstrate that each of the three requirements of “substantial merit”, “no valid defence”, and “harm suffered outweighs public interest in protecting expression” are met. Failure to satisfy the court of any of these elements means the test is not met and the proceeding will be dismissed. Inversely, satisfying the court of each of these criteria will defeat the motion to dismiss and permit the action to proceed.
After setting out the purposes of the new legislation and the policy rationale of the Protection of Public Participation Act, 2015, Justice Lederer goes on to provide helpful guidance regarding each element of the section 137.1(4) test.
Justice Lederer adopts the test for “substantial merit” set out by Justice Dunphy in Able Translations Ltd. v Express International Translations Inc., 2016 ONSC 6785, who commented it was “notable that the Legislature has added the qualifier “substantial” to modify “merit””:
The qualifier “substantial” means that something more than “some” merit needs to be demonstrated. This qualifier provides a further indication that a level of scrutiny higher than the low threshold of not being frivolous and vexatious is intended. Satisfying a judge that there are grounds to believe the claim has “substantial merit” requires that the judge be satisfied that there is credible and compelling evidence supporting the claim as being a serious one with a reasonable likelihood of success. A claim that appears to be marginal or dubious, for example, would not satisfy the standard even if it would be immune to being struck as frivolous or vexatious.5
Justice Lederer goes on to note that in a defamation action the plaintiff must show the “defamatory sting” of the words complained of, and the trier of fact “must determine the defamatory sting from both the plain meaning of the words complained of and from what the ordinary, reasonable person would infer from them in the context in which those words were published.”6
The context of widespread public concern and debate about the potential environmental and health risks of depositing additional waste at the United Soils site in which Ms. Mohammed’s comments were posted was an important factor for Justice Lederer in dismissing United Soils’ contention that the defamatory sting came from an implication that United Soils was intentionally committing the criminal act of causing children to consume noxious substances. Instead, Justice Lederer observed that Ms. Mohammed was “doing nothing more than recognizing the well-known relationship between the deposition of certain kinds of waste, in the ground, and the potential risks this can pose to the water we drink.”7
Justice Lederer also emphasized that Ms. Mohammed’s retraction and apology, in compliance with United Soils’ demand, eliminated any merit the proceeding might have otherwise had. He commented that regardless of what Ms. Mohammed may have thought or the genuineness of her apology (an issue raised by United Soils), the apology and retraction was delivered to all of the recipients of her original statements. Thus, Justice Lederer concluded “there is nothing to be gained by proceeding. Katie Mohammed has apologized. There is no continuing harm. The proceeding is not only without “substantial merit”. There is no merit. What Katie Mohammed may or may not continue to think does not change that conclusion.”8
No Valid Defence
Although not strictly necessary, given his conclusion on substantial merit, Justice Lederer goes on in obiter to consider the valid defence requirement for the purpose of developing the jurisprudence surrounding the “relatively new legislation”.9 Justice Lederer considers in detail four potential defences that might apply to the defamation action: justification, fair comment, qualified privilege, and responsible communication. He goes on to note that the onus is on the responding party to a motion under section 137.1(3) to prove that such defences are not available and concludes with respect to each that United Soils failed to satisfy the court there were grounds to believe that no valid defence was available to Ms. Mohammed.
It is beyond the scope of this comment to review Justice Lederer’s treatment of each defence. What is important is that Justice Lederer concluded that the threshold of “grounds to believe” there is no valid defence is “both above ‘frivolous’ and below the ‘balance of probability.’” Further, Justice Lederer noted that “the legislature did more than just “tilt the balance somewhat”. Rather the legislature created a steep hill for the plaintiff to climb before an action like this one is to be permitted to proceed.” He went on:
The legislation directs that we place substantial value on the freedom of expression over defamation in the public sphere. To put it simply, those who act in the public realm need to realize that not everybody will accept what they wish to do or agree with what they say and may make statements that go beyond what may seem, to the recipient, to be appropriate.10
The balance intended by the legislature, Justice Lederer suggested, is intrinsically biased toward assuring people they can take part in public discourse without becoming the target of actions without substantial merit or for which there are grounds to believe they have a valid defence.11
Addressing United Soils’ contention that Ms. Mohammed’s comments were malicious because she was reckless in using the words “poisoning our children” and in not reading the reports prepared by United Soils, Justice Lederer repeated “the policy directive behind the legislative changes that are the foundation for this motion are not to impede but to encourage participation in public issues” and held: “There is no duty to read particular reports, attend public meetings or educate oneself to some established degree before being permitted to enter the fray free of concern of being sued.”12
Accordingly, Justice Lederer was not satisfied there were grounds to believe Ms. Mohammed did not have a valid defence, as she only needed one such defence to succeed, and any of the four proposed could have been valid.13
Balancing Harm Suffered against Public Interest in Protecting Expression
With respect to balancing, Justice Lederer observed that the harm caused by the expression and the public interest in protecting expression should be examined separately then weighed against each other.14 The burden of proving that the harm caused outweighs the public interest in protecting expression lies on the plaintiff/responding party, and as Justice Lederer observed, “The bar is not a low one.”15 Again adopting Justice Dunphy’s earlier judgment in Able Translations, Justice Lederer noted “The evidence of damages suffered or likely to be suffered must be such that there is credible and compelling evidence of harm that appears reasonably likely to be proved at trial.”16
Ultimately, Justice Lederer found the balance rested in favour of protecting expression because: “If this action is allowed to proceed there is no way of knowing how many people interested in this issue, or for that matter any other public concern, will feel intimidated and not take part for fear of being the subject of a similar law suit.”
Justice Lederer dismissed the action and proceeded to award damages pursuant to section 137.1(9) of the Courts of Justice Act17 in the amount of $7,500 to Ms. Mohammed to be paid by United Soils to compensate her for the unnecessary stress the action caused in her day to day life.
United Soils continues a growing line of cases providing a broad interpretation of the new protection of public participation sections of the Courts of Justice Act. Justice Lederer’s decision emphasizes the Legislature’s objective that citizens “be able to take part in public discourse without a general fear of being sued” and that the protection and “encouragement of freedom of speech as a value is to outweigh any accompanying private harm.”18
It appears that this trend of liberal and purposive interpretation of these anti-SLAPP provisions will continue in order to advance the policy rationale of promoting increased participation in public debate and discourse on important issues of general interest. This development promises to strengthen and enhance the fundamental Canadian value of free, open, and democratic debate and decision-making.
In light of this, it would seem prudent for individuals, companies, and counsel to carefully consider the potential application of this new legislation and jurisprudence prior to commencing an action in defamation arising out of an “expression” in relation to matters of “public interest”.
Similarly, a person who is the target of defamation proceedings in relation to comments or representations made on a matter of public interest, such as human or environmental health concerns as in United Soils, might seek legal advice on whether an anti-SLAPP motion to dismiss the proceeding is a viable option in defending the action.