Case launches testing anti-SLAPP laws

An Ontario Superior Court judge will hear arguments this week in what is believed to be one of the first tests of the province’s new “anti-SLAPP” legislation as it relates to a defamation action.

A Toronto-area resident is asking the court to throw out a lawsuit initiated by a former Richmond Hill councillor over comments made in an advertisement in a local newspaper and on a Facebook page, in a dispute over a proposed residential development.

The unusual facts in the case include allegations that the newspaper advertisement compared him to Al Capone and that a picture of the hip-hop performer Snoop Dogg on the Facebook page was intended to disparage the politician.

Frank Zeppieri is seeking the dismissal of a $1-million defamation action launched by Nick Papa, a long-time councillor in Richmond Hill until his defeat in the 2014 municipal election.

The motion is based on a new section of the provincial Courts of Justice Act that was enacted last fall after the Ontario government passed the Protection of Public Participation Act.

“The facts of this case are precisely what the Ontario legislature had in mind when it enacted the PPPA,” state written arguments filed with the court in support of Zeppieri’s motion, which is scheduled to be heard Aug. 10.

“The statements and publications made by Mr. Zeppieri, which are the subject matter of the within defamation Claim, were all made in relation to matters of public interest that are of the highest importance — a proposed condominium development in a residential neighbourhood and a municipal election,” the written submissions state.

Iain MacKinnon, a Toronto-based lawyer representing Zeppieri, says the motion is consistent with the purpose of the new statute and freedom of expression guarantees in the Charter. 

“Mr. Zeppieri believes that everyone should have the right to express their political views, especially during an election campaign, without fear of retribution for expressing those views,” explains MacKinnon, a lawyer at Linden & Associates in Toronto.

Papa launched the action last year. The alleged defamation is based primarily on a newspaper advertisement taken out by Zeppieri in a local publication and a Facebook page he posted — both before the last election.

The newspaper advertisement has a picture of Papa, with copy that states, “On October 27th, show him he is unwanted.” The word unwanted is printed over Papa’s face.

Readers are asked to Google a phrase that would bring them to the Facebook page, which has the same title as the advertisement in the newspaper.

As well, it has a picture of Snoop Dogg.

The statement of claim issued by Papa alleges Zeppieri, who is the head of a local residents’ association, misrepresented the politician’s position about the proposed development, which ultimately never went ahead.

The “unwanted” advertisement and the content on Facebook is defamatory and intended to disparage Papa’s reputation, the court document states.

“The Facebook page expressly or by implication suggests that Papa is ‘wanted’ for criminal conduct and associates Papa with the rap singer ‘Snoop Dogg’ who is known as a person who uses drugs and has been associated with criminal activity,” says the statement of claim.

One of the documents filed with the court by Papa in support of his action is a reproduction of a photo issued by the FBI in the 1930s with the word “wanted” in bold type over a photo of the notorious gangster Al Capone.

An affidavit filed in court by Papa also claims that “as a consequence of Zeppieri’s campaign to ruin my reputation in the election after 18 years as a councillor,” he was defeated in 2014.

None of the allegations made by either side in the legal action has been proven in court.

(The statement of defence filed by Zeppieri says that the picture of Snoop Doog was put on the Facebook page simply to try to increase traffic to the site.)

Paul Starkman, who heads Starkman Barristers in Richmond Hill and represents Papa, declined to comment as the court is about to hear the motion.

The provincial government enacted the anti-SLAPP  or strategic lawsuits against public participation law last year.

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