Introduction Able decision Platnick decision Comment

Introduction

In November 2015 the Protection of Public Participation Act 2015 came into force in Ontario. The act is aimed at identifying and eliminating strategic lawsuits against public participation (SLAPPs). Quebec is the only other province in Canada that has anti-SLAPP legislation. SLAPPs are strategic lawsuits, mostly in defamation, that are used to intimidate or punish opponents and discourage free expression on matters of public interest. After extensive consultations with stakeholders and an expert advisory panel, the Ontario government enacted the law with the intent to "allow the public to participate more freely in public discussions without fear of retribution by giving them a better way to defend themselves against strategic lawsuits".(1)

Under the law, a defendant or respondent may bring a motion to dismiss an action as a SLAPP and a judge must dismiss the proceeding if he or she is satisfied "that the proceeding arises from an expression made by the person that relates to a matter of public interest", unless the responding party shows that:

  • there are grounds to believe that the proceeding has substantial merit ('substantial merit' is not defined in the law);
  • there are grounds to believe that the moving party has no valid defence in the proceeding; and
  • the harm likely to be or that has 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.

Two recent decisions from the Ontario Superior Court of Justice have tested the new anti-SLAPP law in a manner that appears to embrace the philosophy behind the statute.

Able decision

In Able Translations Ltd v Express International Translations Inc(2) Able Translations Ltd, the plaintiff translation services company, brought a defamation suit against another translation services company, Express International Translations Inc, and its officer and director Philippe Vitu. Vitu had written blog postings about a political candidate named Peter Fonseca who was an officer of Able. The blog postings suggested that Fonseca's association with Able reflected badly on his fitness for office. In dismissing the action against Vitu,(3) the judge concluded that the blog postings constituted an expression regarding the public interest. The onus then shifted to the plaintiff who failed to establish that:

  • there were grounds to believe that the proceeding had substantial merit as the defamatory sting of the postings was very weak except to those already familiar with the numerous public allegations made by others about the plaintiff;(4)
  • the plaintiff did not give the judge reason to believe that the fair comment defence raised was valid (and that there was no evidence to lead the court to expect that the plaintiff could reasonably expect to be able to demonstrate that Vitu was motivated by malice); and
  • the evidence of harm attributable to the blog postings was entirely implausible compared to the compelling evidence of the direct chilling impact of the threat of the suit on the defendant's expression during an election campaign.

The judge held that to determine whether the expression meets the public interest test, the court must review the subject matter of the communication objectively and reasonably, and not assess the motives of the speaker or writer. Thus, the fact that Vitu had expressed an opinion about a business competitor did not disentitle the expression from being in the public interest. The judge noted that the issue of motive would arise in the second phase of the inquiry, being the balance of interests.

With regard to what kind of expression would fall within the "public interest", the judge in Able followed an earlier Supreme Court decision in the defamation context and noted that in that context, public interest is not confined to publications on government and political matters as it is in Australia and New Zealand, nor is it necessary that the plaintiff be a "public figure" as in US jurisprudence; rather, the judge held that the public interest can be found in matters ranging from science, the arts, the environment, religion and morality.

As for the standard of proof required for the plaintiff to establish that the proceeding has substantial merit and that the defendant "has no valid defence" in the proceeding, the judge held that the standard implied in the law is that of "reasonable grounds to believe" which is "something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities".(5)

With respect to the last aspect of the test – the balance of interests – the judge noted that the evidence of damages suffered or likely to be suffered in consequence of the impugned statements must be such that there is "credible and compelling evidence of harm that appears reasonably likely to be proved at trial". While the judge noted the practical limitations for the plaintiff to prove this in a fast-track summary proceeding, nonetheless the law permitted the judge to conduct such a weighing exercise in light of the stated objectives of the legislation and that the plaintiff must provide "compelling, credible and cogent evidence" to establish the existence of actual damages and the basis for attributing those damages to the expression. Interestingly, the judge noted that when weighing the public interest in protecting the expression, such an analysis does not turn on a tally of how influential the communication might be or how many may find it important, but by a consideration of the "quality" of the expression – in other words, where the particular expression falls on a spectrum that stretches from considered, reasoned debate to unreasonable hatred even where the subject matter is one of public interest.

Platnick decision

Shortly after the Able case was released, the same judge released the decision in another defamation proceeding, granting the anti-SLAPP motion brought by the defendant to dismiss the action. In Platnick v Bent(6) defendant Bent was a lawyer and president of the Ontario Trial Lawyers Association (OTLA). Bent sent an email to a confidential 'Listserve' accessible only to those OTLA members who subscribed to it. The email alerted subscribers to an incident that occurred during the course of Bent's representation of a client in a catastrophic injury claim and provided subscribers with advice for the conduct of similar claims in future. The email made reference to two expert reports provided by plaintiff Dr Platnick in terms that he claimed were defamatory (Bent had alleged that Platnick created a medical report which was supposed to summarise individual assessments conducted by several independent medical examiners of Bent's injured client, but the summary was false and misleading).

The judge granted the anti-SLAPP motion and dismissed the action, finding that:

  • the email related to a matter of public interest and, as such, the proceeding "must" be dismissed; and
  • the plaintiff did not meet the test for no dismissal as he did not provide credible or compelling evidence from which the judge could derive reasonable grounds to believe that the defences pleaded by the defendant are not valid.

Interestingly, the judge decided not to determine whether the claim could be considered to be one of substantial merit given that the plaintiff had failed to satisfy the judge on the 'no valid defence' aspect of the test. Great emphasis in the decision was placed on the balance of interests aspect, and the judge found that the chilling effect was significant as it would chill discussion and debate about the proper use and utility of this type of expert's report in the accident benefit claims process.

This decision applies the interpretation of the anti-SLAPP test from Able and appears to go even further. For example, the decision in Platnick recognises a public interest in protecting expression that extends beyond political commentary (or, for that matter, expression on science, the arts, the environment, religion and morality). In Platnick an email expressing a lawyer's dealings with an expert to serve as a lesson for other plaintiff-side lawyers, communicated in a private forum to a restricted audience, was still found to constitute subject matter involving the public interest as the judge found that there is a strong public interest in lawyers sharing information and in the administration of justice.

The Platnick decision is also notable in that the judge stated that he will leave it to subsequent cases to describe with "greater precision" where on the continuum between 'frivolous' and 'proven on the balance of probabilities' a defence must lie to satisfy the 'no valid defence' aspect of the anti-SLAPP test. However, the judge found that in the case before him, he was satisfied, while making necessary allowances for the relatively preliminary state of proceedings, that at least two of the defences proposed by the defendant (substantial justification and qualified privilege) appeared "quite likely to succeed".

Comment

Although relatively new, the anti-SLAPP law in Ontario has significant teeth, as it can be used – and has already been used – to dismiss an action in its early stages before the discovery process has commenced. Indeed, the law mandates a fast-track process as a motion to dismiss can be made at any time after the proceeding has commenced. Moreover, there is a significant costs consequence for SLAPPs, as successful moving parties are entitled to substantial indemnity costs for the motion and the proceeding itself.

It will be interesting to see how the Ontario courts interpret and apply the anti-SLAPP law and whether other judges will take a similarly robust approach to such motions as the judge who rendered the two decisions discussed in this update.(7) However, what is clear is that the law will continue to be tested in action as more defendants are likely to be encouraged to bring such motions as part of their defence strategy, whether the suits are ultimately found to be SLAPP.

For further information on this topic please contact Carlos P Martins or Tae Mee Park at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800) or email (cmartins@lexcanada.com or tpark@lexcanada.com). The Bersenas Jacobsen Chouest Thomson Blackburn website can be accessed at www.lexcanada.com.

Endnotes

(1) Ministry of the Attorney General news release.

(2) 2016 ONSC 6785(CanLII).

(3) The claim against the corporate defendant was dismissed summarily on the basis that its name was in no way associated with the blog postings, an expression of opinion of its disclosed author Vitu.

(4) The judge noted that the defamatory sting must be that which is pleaded in the statement of claim – in this case, the claim pleaded that the blog postings express and implied meaning in their full context are meant that Able was disreputable in its business dealings and insolvent. The judge found that there is no evidence to substantiate the claim that the blog postings could suggest that Able was insolvent and, taken at their highest, the blog postings collectively suggested that Able already has a questionable reputation that reflected badly on Fonseca, a view shared by Vitu, and that this suggestion would not cause Able's reputation to be lowered in a reasonable person's eyes.

(5) Para 46.

(6) 2016 ONSC 7349 (CanLII). The plaintiff in Platnick v Bent also argued unsuccessfully that the operation of the anti-SLAPP law was unconstitutional as it violated the Charter of Rights and Freedoms.

(7) For example, in 1704604 Ontario Ltd v Pointes Protection Association (2016 ONSC 2884 (CanLII)) the judge adopted a lower standard to the assessment of the merits of the claim than the judge in Able and Platnick. In Pointes Protection the motions judge interpreted the test for whether the proceeding has "substantial merit" as whether the claim is "not a claim that is frivolous or fleeting… In other words, it is a claim of substance". The judge in Pointes Protection dismissed the defendant's motion to dismiss the action as a SLAPP; the decision has been appealed to the Ontario Court of Appeal.

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