The Ontario Court of Appeal is expected to issue rulings this fall in a half-dozen cases related to the province’s so-called anti-SLAPP legislation, which was enacted in the fall of 2015.
The cases, including a constitutional challenge to the provisions in one of the appeals, were all heard at the same time at the end of June.
Andrea Gonsalves, a partner at Stockwoods LLP in Toronto, says there have been different applications by Superior Court judges of legislation that is not even two years old and guidance from the Court of Appeal will be helpful.
“Where do we set the needle? What is the threshold for the defendant to meet?” are some of the questions the Court of Appeal will hopefully answer, says Gonsalves, who specializes in civil and Charter-based litigation and has previously acted for media outlets in defamation proceedings.
The legislative changes, known as the Protection of Public Participation Act, are contained within the Courts of Justice Act. At the time the provisions were passed, the Ontario government said it was an attempt to reduce the risk of individuals being sued for speaking out on matters of public interest — actions often referred to as “strategic litigation against public participation.”
David Sterns, a partner at Sotos LLP in Toronto, was part of an Ontario Bar Association working group on the provisions before they became law.
“It was an attempt to help people who were targeted [by a SLAPP suit]. Often, the defendants in these actions do not have a lot of money,” Sterns says.
The legislation permits someone who is a defendant in a libel action to bring a motion to dismiss it at an early stage. The person must satisfy the court that the allegedly defamatory expression related to a matter of public interest. If that is the case, then a judge “shall” dismiss the action unless the plaintiff can persuade the court that its lawsuit has “substantial merit” and “there is no valid defence to the proceeding.”
The plaintiff must also be able to show that the harm caused by the expression is “sufficiently serious” that the public interest is greater to continue with the proceeding than to protect the expression.
“Early on, the rulings were far more pro-plaintiff,” says Gonsalves.
The analysis appears to have shifted in more recent decisions, she notes. She cites rulings in this area by Superior Court justices Sean Dunphy and Thomas Lederer.
“Their approach is consistent with the intent of the statute,” Gonsalves suggests.
Dunphy issued a ruling last fall in a case where a doctor who was often an expert witness filed a lawsuit against the then-president elect of the Ontario Trial Lawyers Association for postings she made about his credibility on an association listserv.
The Superior Court judge in Platnick v. Bent dismissed the libel action filed by the doctor and also a Charter challenge to the legislation (his ruling is one of the cases before the Court of Appeal this summer).
The independence of experts in legal proceedings is a matter of significant public importance, stated Dunphy. He rejected the doctor’s argument that whether an expression is in the public interest should require a “clear and convincing” standard of proof to be met.
The ruling then set out the bar for the plaintiff to meet if an expression has been found to be in the public interest.
“The responding party bears the burden of establishing on objective evidence that shows beyond mere suspicion and based on ‘compelling and credible information’ both that the claim has ‘substantial merit’ and that there is ‘no valid defence.’ How high a probability of success in establishing the claim or the affirmative defence must be made out is something that will have to be worked out on a case-by-case basis,” Dunphy wrote.
The ruling by Lederer in United Soils Management Ltd v. Mohammed stated that the new provisions did more than “tilt the balance somewhat” in favour of expression.
“The legislature created a steep hill for the plaintiff to climb before an action like this one is to be permitted to proceed. The legislation directs that we place substantial value on the freedom of expression over defamation in the public sphere,” wrote Lederer in a decision issued on July 25.
“The policy proposition is to encourage public discourse. It is not to control the quality of the debate. Free expression by definition is not to be limited within any parameters set by the perceived value or substantive attributes of what was said or published,” explained Lederer.
The action involved a libel lawsuit filed by a company that owns a gravel pit northeast of Toronto against an area resident who made critical comments on a closed Facebook group. The company continued with its action even though the resident apologized as instructed by the plaintiff’s lawyer. In addition to full indemnity costs as required by the legislation, Lederman also ordered the company to pay $7,500 in damages to the resident.
The judge, in his ruling, was quite critical of the company for continuing with its action against a resident who expressed concerns about the potential local health impact of the gravel pit.
“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. The implications of this concern are broad,” the judge stated.
Sterns was lead counsel for Mohammed in the Superior Court action. He says he cannot talk about the specifics of the case because the company has filed an appeal of Lederer’s decision. Some of the anti-SLAPP measures are unfair, say critics, such as the requirement to award full indemnity costs to a successful defendant, absent exceptional circumstances. Sterns disagrees and believes it is a check on legal actions aimed at stifling public criticism. “People who bring SLAPP suits are often used to throwing their weight around,” he says.
Gonsalves agrees and says that to date there does not appear to be any sign that legitimate libel lawsuits cannot go forward. “This regime is flexible enough. I have not seen cases tossed prematurely,” she says.
The new measures state that a hearing must take place within 60 days after a defendant files a Notice of Motion under the Act. Both lawyers say they hope the Court of Appeal will stress the need for lower courts to comply with this requirement.