The company argued a CTV program and online posts referring to "canine cruelty" were defamatory
A judge correctly ruled in favour of an anti-SLAPP motion that CTV-Bell Media Inc. and other contributors to a documentary news program filed to challenge a dog-sledding company’s defamation lawsuit, the Ontario Court of Appeal ruled Friday.
The OCA also rejected the dog-sledding company’s contention that the court’s decision in a 2024 case, Burjoski v. Waterloo Region District School Board, developed anti-SLAPP case law. The company had argued that under Burjoski, the court has to deem an action “abusive” before it can dismiss the action on anti-SLAPP grounds.
The dispute began in 2022 when CTV broadcast an episode of the documentary news program W5 called “Dogs in Distress.” The episode highlighted discourse on the dog-sledding industry in Canada and the conditions that sled dogs endured.
Windrift Adventures Incorporated, which operates a dog-sledding business, was one of the companies profiled in the episode. At the time, the company was mired in legal proceedings concerning animal welfare authorities removing its dogs and a finding by the Ontario Animal Care Review Board that its dogs were in distress.
Windrift filed a defamation lawsuit against CTV and others involved in the W5 episode, arguing it had been defamed by the episode and multiple social media posts promoting it. One of the posts leads with the phrase “canine cruelty.”
CTV and the other defendants countered with a motion under s. 137.1 of the Courts of Justice Act, otherwise known as an anti-SLAPP motion. The mechanism, which was created by the Ontario legislature in 2015 via the Protection of Public Participation Act, allows defendants to seek the dismissal of claims in cases that arise from “an expression made by the [defendant] that relates to a matter of public interest,” according to the law.
The legislation aimed to crack down on the use of lawsuits to silence discourse on matters of public interest.
A motion judge ruled in favour of the defendants, concluding that Windrift had not shown that its action had substantial merit. The judge also found that the harm that CTV and the other defendants caused the company was not serious enough to warrant interfering with the defendants’ expression.
Windrift appealed, but the OCA sided with the motion judge.
In its decision, the OCA noted that to determine whether Windrift’s lawsuit had merit, the motion judge used the three-pronged test set out in a 2020 Supreme Court of Canada decision called Bent v. Platnick. To pass this test, Windrift must prove that the expression it takes issue with was published, referred to the company, and was defamatory in the sense that it would lower the company’s reputation in the eyes of a reasonable person.
While the W5 episode explicitly identified Windrift, the motion judge found that the episode did not meet the third prong of the test because, in the eyes of a reasonable person, the company’s reputation had already been tarnished by the legal proceedings involving animal welfare authorities. The OCA agreed with the motion judge.
The OCA also rejected Windrift’s argument that because the W5 episode and social media posts triggered health and family issues for one of the company’s co-owners, hindering her ability to work, the defendants caused the company financial harm.
The OCA said the motion judge correctly found “that the harm the appellant allegedly suffered was not ‘sufficiently serious’ to outweigh the public interest in protecting the [defendants’] expression.
“That determination flowed from her finding both that the evidence of the causal link between the expression and the alleged harm was weak and that the appellant’s alleged harm was ‘questionable,’” the OCA added. “Those findings were fully available to the motion judge on the record.”
Regarding Windrift’s argument that the court cannot dismiss its lawsuit on anti-SLAPP grounds without first deeming the action “abusive,” the OCA said Burjoski, an OCA case, cannot change the SCC’s stance on anti-SLAPP law, which indicates otherwise.
The court added, “On a fair reading of Burjoski, it uses the word ‘abusive’ simply as a shorthand description for actions that seek to unduly limit expression on matters of public interest rather than as a means of seeking redress for a bona fide claim.”
In a statement to Law Times on Friday, Eric Gillespie, a sole practitioner who represented Windrift, noted that several recent OCA decisions, including Benchwood Builders, Inc. v. Prescott, address some of the challenges and problems with Ontario’s anti-SLAPP legislation. This decision does not explicitly address those issues.
“However, the case itself may be an appropriate forum to discuss those issues,” Gillespie said. “We will be speaking with our client and others with a view towards potentially seeking to raise them in a leave to appeal application.”
Counsel for the defendants declined to comment.
