COVID-vaccine skeptic doctor loses anti-SLAPP case at Court of Appeal

Defendants included prominent journalists who criticized tweets calling vaccine unnecessary

COVID-vaccine skeptic doctor loses anti-SLAPP case at Court of Appeal
Howard Winkler, George Pakozdi

In a defamation case arising from an X – formerly Twitter – fight over the efficacy and necessity of COVID-19 vaccines, the Court of Appeal for Ontario highlighted the importance of weighing the public interest of the expression against the harm to the plaintiff in assessing anti-SLAPP motions.

In Gill v. Maciver, 2024 ONCA 126, Dr. Kulvinder Kaur Gill brought a defamation claim against 23 doctors, journalists, and journalistic institutions. The defendants moved under s. 137.1 of the Courts of Justice Act – an anti-SLAPP motion – to dismiss her claims because they were an attempt to limit debate on a matter of public interest. The motion judge ruled that Gill’s claims were “precisely of the kind that s. 137.1 is designed to discourage and screen out.” The judge dismissed her claim and awarded over $1.1 million to the defendants.

Gill appealed the dismissal of her claims against four of the 23 defendants: the Globe and Mail’s Andre Picard and Carly Weeks, freelance journalist Alheli Picazo, and Dr. Angus Maciver. Her claims stemmed from insults and criticisms posted on X in response to Gill’s tweets about the Ontario Medical Association (OMA), the COVID-19 vaccine, and various other medical institutions.

In a decision released last Thursday, the Court of Appeal dismissed the appeal.

“The Court of Appeal really honoured the intent of the Supreme Court of Canada in its decisions related to this legislation,” says Howard Winkler, who acted for Maciver. The court focused on what the SCC described as the “crux of the matter:” weighing the public interest of the allegedly defamatory expression against the harm to the plaintiff.

“The weighing exercise should be the paramount consideration in counsel’s mind in attempting to limit the expenses incurred on these motions, and for judges in terms of the priority in which they should address an analysis of legislation.”

Winkler says anti-SLAPP motions and appeals of motion decisions have proliferated, and the Court of Appeal has expressed displeasure about the consequent cost to parties.

“The combination of those factors and this decision’s emphasis on the weighing exercise should help to reduce the number of appeals that are being heard on this legislation and should help limit the costs of these motions going forward,” he says.

The claim against Maciver arose from statements he made on X criticizing Gill for blocking him, which prevented him from responding to Gill’s attacks against the OMA. Gill is a medical doctor, has been a member of the OMA Governing Council, and is a founding member of Concerned Ontario Doctors, which describes itself as a “grassroots, non-profit organization of frontline physicians advocating for a patient-centred, sustainable, accessible, and quality healthcare system.”

Gill tweeted that the OMA had a “toxic culture of misogyny, bullying, and intimidation” and called its leadership “vermin,” “corrupt,” and “a threat to patient care.” Maciver tweeted in response that COD was “continuing to fragment the profession in Ontario,” and Gill blocked him. Gill continued to criticize the OMA, and a year later, Maciver tweeted that she and other COD members were “corksoakers” and “twats.” He later publicly apologized for the tweets and was disciplined by the College of Physicians and Surgeons of Ontario.

The claim against Picard, Weeks, and Picazo originated in 2020 during the COVID-19 pandemic. Gill tweeted that “we don’t need a vaccine,” those who did not understand this were “not paying attention,” and society could “safely return to normal life now” because of T-cell immunity and hydroxychloroquine.

Picard tweeted that Gill’s statement, contradicting the prevailing medical consensus, was “quite shocking.” She responded that it was “quite shocking that a journalist with absolutely no medical training is attacking an MD for stating scientific facts.” Gill also said his comment was not surprising because he was a Pierre Trudeau Foundation Mentor and member of a committee whose purpose is to “drive the political [World Health Organization] narrative.”

Court of Appeal Justice Patrick Monahan, who wrote the reasons for the panel, said a “Twitter storm” followed, which eventually enmeshed Weeks and Picazo.

“The case was really about freedom of speech and the right to express oneself on the most pressing matters of the day in the online discourse,” says George Pakozdi, who acted for Picazo. “My client’s position all along was that all she was doing was responding to what the plaintiff had said with their own thoughts on the pandemic and the viability of the treatment that the plaintiff was promoting.”

Pakozdi’s position was that his client’s comments fell under the defamation defence of fair comment. He says this was precisely the type of case that anti-SLAPP provisions were introduced to address.

The motion judge found that Maciver’s tweets concerned a matter of public interest, that offensive language is not necessarily defamatory, and that there is an “important distinction in the law of defamation between words that are actionable for being defamatory and words that merely contain insults and are not actionable.”

The judge found Picard’s and Picazo’s tweets were also on a matter of public interest: the development of effective COVID-19 treatments.

The purpose of the anti-SLAPP provisions under s. 137.1 of the Courts of Justice Act provides protections against defamation claims brought to limit public participation in matters of public interest rather than rectifying genuine harm. The party bringing the anti-SLAPP motion must satisfy the judge that the defamation claim stems from an expression relating to a matter of public interest. Then, the burden shifts and the party that brought the defamation claim must show that there are grounds to believe their claim has substantial merit, that the counterparty has no valid defence, and that the public interest in allowing the defamation claim to proceed outweighs the public interest in protecting the alleged defamer’s expression.

Gill’s appeal rested on three alleged errors by the motion judge. The first is that the judge incorrectly found Maciver’s and Picazo’s statements were not defamatory. The second is that the judge erred in finding that Picard, Weeks, and Picazo had a prima facie fair comment defence. Gill also argued that the judge erred in the public interest weighing exercise.

The Court of Appeal did not analyze the first ground and dismissed Gill’s appeal on the basis that the judge did not make the errors alleged in the other two.

For a successful fair comment defence, the defendant must prove five things: the comment was on a matter of public interest, fact-based, recognizable as a comment, and the speaker was not motivated by malice. The defendant must also satisfy an objective test: Could any person honestly express that opinion on the approved facts?

On the fair comment defence, Gill argued that the judge failed to consider whether the three defendants’ comments were based on proven facts or, alternatively, that their statements were true. She also argued that the judge failed to consider whether the three were motivated by malice. The court found there was no merit to either argument.

Monahan said the defendant must only identify “the factual foundation upon which the impugned statement is based.” The three defendants all identified Gill’s statements to which they had responded and their basis for responding as they did. Gill had no basis for the claim that the judge erred in finding the defendants were not motivated by malice, said Monahan, because the judge made clear findings that they were motivated by how Gill’s statements could misinform the public and create a public health risk.

On weighing the public interest, Gill argued that the motion judge focused on damages instead of harm and incorrectly required her to establish a causal link between the harm and the impugned statements. She also said that the judge erred by not considering the quality of the allegedly defamatory expression.

Monahan found that the judge made none of these errors. The judge had not required evidence of damage, as distinct from harm, but found Gill had not brought any evidence of harm. Gill had merely made the “bold, conclusory assertion” that the statements damaged her reputation, which was also contradicted by a statement she later made that “she remains a highly regarded member of the medical profession.”

Monahan found no error in the judge’s requiring evidence of a causal link between the impugned statements and any alleged harm because the requirement is “expressly mandated” by s. 137.1(4)(b) of the Courts of Justice Act.

On the alleged error that the judge failed to appropriately consider the quality of the expression, Monahan noted that the motion judge had acknowledged that the impugned statements by Maciver were “insulting, unprofessional and ill-advised.” But the Supreme Court of Canada has said that speech which contains “deliberate lies or gratuitous personal attacks” can still be “entitled to some modest level of protection.” The weighing exercise should not involve a “moralistic taste test,” the SCC said. 

Monahan found it was open to the motion judge to find there was “some degree of public interest” in protecting Maciver’s right to speak out on the issue. Gill had blocked Maciver, preventing him from “responding directly to her very serious attacks” on the honesty and integrity of the OMA’s leadership. Monahan said Gill failed to show any evidence of serious harm, so it necessarily followed that serious harm could not outweigh the public interest in protecting Maciver’s freedom of expression.

As for Picard, Weeks, and Picazo, the judge found “an extremely high” public interest in protecting their freedom of expression. Monahan said there was no basis to interfere with the judge’s finding, as “questions surrounding the development of effective treatments for COVID-19, including the need for vaccines, were matters of great public interest to the medical profession and the public at large.”

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