In both cases, the Court of Appeal focused its analysis on the section of the statute that requires a judge to weigh whether the harm suffered by the expression is sufficiently serious that there is a greater public interest in permitting a proceeding to continue than in protecting that expression.
The Court of Appeal first set out a template on how to apply the Protection of Public Participation Act in its decision last August in Pointes Protection. In these two latest rulings, especially in the area of online commentary, the court is signalling that the “public interest hurdle” as referenced in Pointes is going to be significant for plaintiffs, says Toronto lawyer Iain MacKinnon.
“In dismissing these cases, the court is saying there needs to be some quantifiable or substantial damages,” notes MacKinnon, a partner at Linden & Associates, who frequently acts for clients in defamation proceedings.
By requiring the plaintiff to present this evidence at the time of an anti-SLAPP motion, the Court of Appeal is not following the traditional way of dealing with damages in this area of the law, he says.
“Once you have established liability, you don’t have to prove damages. They are presumed,” says MacKinnon, adding that the amount of damages would normally be a matter determined at trial.
Sebastian Winny, who acted for the successful party in New Dermamed, says the Court of Appeal’s recent decisions are an attempt to provide additional direction to Superior Court judges in these cases.
“It is inviting motion judges to focus on the public interest hurdle. That may be a simpler route,” says Winny, a civil litigator based in Kitchener, Ont.
“In general, I would say these actions are inherently challenging, unless the plaintiff can establish the existence of damages and a causal relationship [to the comments],” Winny adds.
Ruzbeh Hosseini, who represented New Dermamed, says businesses that feel they have been defamed by an online comment or review face a conundrum as a result of the anti-SLAPP provisions.
“You are supposed to have all your ducks in a row before the [s. 137] motion is brought. Do you wait so you can collect sufficient evidence of damage to your business?” asks Hosseini, a lawyer at Cambridge LLP in Toronto. Delaying in filing a claim my increase the harm to your business, he points out, but taking swift legal action may result in it being dismissed because the full impact of the comments can not yet be shown.
New Dermamed filed its lawsuit against Danna Sulaiman in November 2017, a few weeks after she posted comments on a Google review page about the business.
She was critical of a laser resurfacing treatment on her cheeks and stated that it caused “volume loss” on her face. The company’s lawyers wrote to her after the first review and insisted it be deleted.
She subsequently revised the review and included references to the legal letters sent to her.
Justice Peter Cavanagh dismissed the action under the s. 137 provisions. He found that the business had met the test of substantial harm but failed to show that Sulaiman had no valid defence of “fair comment” in the review.
As a result of that finding, the judge said it was not necessary to consider the public interest balancing aspect of the statute.
The Court of Appeal, in its ruling issued on Feb. 25, sought to clarify the bar for plaintiffs to meet when arguing that there is no valid defence for allegedly defamatory comments.
“The onus on the appellant was not to show that there was no possibility that the defence of fair comment could succeed but, rather, just that it was reasonably possible that a trier could conclude that the defence would not succeed,” said the panel of justices David Doherty, Gladys Pardu and Ian Nordheimer.
The Court of Appeal added that some of Sulaiman’s review could reasonably be interpreted as statements of fact and the defence of fair comment would not apply. However, it was then necessary to apply the “balancing exercise” set out in s. 137.1(4) (b).
“While the appellant has filed evidence of some lost business as a result of the reviews that the respondent posted, it has not provided any quantification of those losses nor identified how those losses relate to its overall business. The appellant has not, therefore, established that any harm that it has suffered at the hands of the respondent is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression,” the court wrote.