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Lerners LLP: Jacob Damstra

Court confirms government entities cannot sue critical citizens for defamation

By Jacob Damstra

Two recent decisions arising out of the same case, Niagara Peninsula Conservation Authority v. Smith, provide some important judicial guidance regarding Ontario’s relatively new “Anti-SLAPP” provisions in the Courts of Justice Act, R.S.O. 1990, c. C.43. This article considers the Court’s dismissal of the defamation actions brought by the Niagara Peninsula Conservation Authority (“NPCA”) and others against a private citizen who had raised concerns regarding the Authority’s governance pursuant to s.137.1(3): 2017 ONSC 6973. My companion article “Full Indemnity Costs A Powerful Deterrent in Ontario’s Anti-SLAPP Regime” discusses the Court’s costs award under s.137.1(7): 2018 ONSC 127.

WHAT ARE LAWSUITS AGAINST PUBLIC PARTICIPATION (“SLAPP”)?

Strategic lawsuits against public participation are designed to silence criticisms by burdening the critic with the threat or actual costs of defending a lawsuit. In 2016, the Protection of Public Participation Act came into force creating Anti-SLAPP provisions in the Courts of Justice Act. The purpose of these provisions has been described as protecting persons who speak on matters of public interest, not only from liability and tort, but also from being sued in tort: see United Soils Management Limited v. Mohammad, 2017 ONSC 4450. For a fuller discussion of these Anti-SLAPP provisions and the judicial interpretation thereof, see my previous article “Ontario Superior Court Applies Anti-SLAPP Law to Protect Free Expression on Public Interest Environmental Issues”.

NIAGARA PENINSULA CONSERVATION AUTHORITY V. SMITH

Retired Air Force Major Ed Smith is a citizen and taxpayer residing in the territory under the jurisdiction of the Niagara Peninsula Conservation Authority (“NPCA”). In 2016, Smith compiled a report called “A Call for Accountability at the Niagara Peninsula Conservation Authority” alleging corruption, contract swapping, and other improprieties in the governance of the NPCA and the Niagara Peninsula Conservation Foundation (“NPCF”), a charitable Foundation created by the NPCA to raise money. Smith submitted his reports to the Niagara Regional Police, on the basis that it evinced some level of corruption, and to the Regional Municipality of Niagara, raising concerns of conflict of interest, favoritism, and improper awarding of contracts.

In response to Smith’s filing of his report, lawyers for NPCA wrote to Major Smith threatening to sue him for disseminating the report and demanded that Major Smith:

  • deliver a full and unqualified apology and retraction;
  • deliver a written undertaking not to distribute the report to any other person or publically refer to it in the future or make similar defamatory statements; and
  • provide the identity of the authors of the document.


Shortly thereafter, an article was published in Postmedia referring to Smith’s report and a letter from NPCA’s lawyers. Following further correspondence and press involvement, NPCA and others impugned in Smith’s report brought defamation actions against Smith claiming damages against him. Smith moved for an Order dismissing both defamation lawsuits brought against him under s.137.1 of the Courts of Justice Act.

Justice Ramsay granted Smith’s motion and dismissed both defamation lawsuits. In so doing, his Honour provided some important judicial commentary on the application of the Anti-SLAPP provisions. Justice Ramsay clarified (at paragraph 44) that once a defendant shows that the subject matter of the defamation claim arises from communication related to a matter of public interest, the action must be dismissed unless the plaintiff satisfies the Court of the following three things:

  1. there are grounds to believe that the proceeding has substantial merit;
  2. there are grounds to believe that the moving party has no valid defence in the proceeding; and
  3. the harm likely to be or have been suffered by the plaintiff is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

In relation to the first question of whether the subject matter of the claim arises from a communication related to a matter of public interest, Justice Ramsay made the following findings in the case before him:

  • it was “beyond question that the expressions in question relate to a matter of public interest, to wit: the governance of the Niagara Peninsula Conservation Authority. It is a body funded by public money. Its action or inaction in its sphere of responsibility can affect public welfare. It has been the subject of controversy” (para. 54); and
  • in relation to the NPCF, “the affairs of a registered charity constitute a matter of public interest. A registered charity linked to a public body such as the Authority is all the more a matter of concern to the public” (para. 55).

With respect to the “substantial merit” criterion, the Court held that there were no grounds to believe that NPCA’s action had substantial merit “because as a government entity, it has no right to sue an individual for defamation” (at paragraph 47). In this regard, Justice Ramsay concluded:

  • it is clear that a conservation authority such as NPCA is a government entity (paras. 2 and 48);
  • as a government entity, NPCA “cannot sue an individual in defamation for criticizing it. The Authority has no cause of action at law and therefore cannot show grounds to believe that its action has substantial merit” (para. 51; see also, Montague (Township) v. Page, [2006] O.J. No. 331, at paras. 29-30; Halton Hills (Town) v. Kerouac (2006), 80 O.R. (3d) 577); and,
  • public participation and comment on the governance and administration of conservation authorities is “all the more important” due to the structure and nature of conservation authorities and their governance in this province (para. 53).

Turning to the other plaintiffs, private individuals and entities, the Court also dismissed their defamation actions against Smith. Justice Ramsay held that Major Smith had “an obvious and credible defence: qualified privilege, together with a lack of malice” given the context of the communications in the report submitted to Niagara Regional Police and the Municipal Council.

This case provides important clarity as to the inability of a government entity to bring an action in defamation against a private citizen who is critical of that public body. Justice Ramsay’s decision also makes clear that public criticism and commentary on the governance and administration of public entities, such as conservation authorities, is a matter of public interest, regarding which public participation should be expected and protected in accordance with the purposes of the Anti-SLAPP provisions of the Courts of Justice Act.

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