Defamation

Case demonstrates usefulness of anti-SLAPP legislation

By Jennifer Brown, AdvocateDaily.com Senior Editor

A recent case involving an employee who spoke out against alleged discriminatory practices at a large insurance company demonstrates an appropriate use of Ontario’s anti-SLAPP legislation, says Toronto defamation lawyer Brian Radnoff.

Radnoff, a partner and commercial litigator with Dickinson Wright LLP, has been a critic of the Ontario “Strategic Lawsuits Against Public Participation” (SLAPP) legislation. However, he says in this situation involving an employee who spoke publicly about her employer after she was fired, it was applied appropriately.

“I am generally not supportive of it, but I have to observe that this is the type of case where it is appropriately used,” he tells AdvocateDaily.com. “It does seem to fit with the exact purpose of the legislation, which is to prevent well-resourced parties from preventing smaller, less-resourced parties from commenting on issues of public controversy.”

A Rockwood, Ont. woman worked as a manager for a large insurance company for six years until she was terminated from her job where she was earning $165,000 a year.

After filing a wrongful dismissal action against her employer seeking $600,000 in compensation and damages, the woman spoke to the media about her claim, alleging that the company had a policy that discriminated against selling auto insurance to residents of Brampton, Ont.

The woman said she learned of unwritten rules at the company to make obtaining car insurance for people living in Brampton more difficult compared to other areas of the Greater Toronto Area. The woman said it violated the “all-comers” rule as set out by the insurance regulator. The allegations against the company have not been proven in court.

After speaking to the media, the woman received a libel notice from the insurance company indicating her statements were defamatory. The company subsequently brought a counterclaim against her seeking the amount paid to her on termination plus $700,000 in damages.

That’s when the woman invoked the legislation which bars strategic lawsuits that appear to stifle public participation. Her motion sought to dismiss the counterclaim under s. 137.1 of the Courts of Justice Act, known as anti-SLAPP legislation.

An Ontario Superior Court judge ruled that, in the woman’s case, public interest trumps the interest of private corporations. Her lawsuit against the company can now proceed.

Radnoff, who was not involved in the matter and comments generally, says the court observed that the counterclaim by the employer was designed to stop the plaintiff from publicly commenting on the issues she raised in her lawsuit.

“This is a good example of where this type of legislation has a positive impact because if the motion had not been successful, or if it didn’t exist, then you would have a situation where any defendant could bring this type of counterclaim and make it very difficult for the plaintiff to say anything publicly,” he says.

The key, says Radnoff, is that the plaintiff was careful that her public statements were reflective of what was also pleaded in her claim.

“That’s important. It gave her protection by connecting it to the statement of claim, which is a public document. There’s generally no issue about any public reporting on a statement of claim,” he says.

Radnoff says he doesn’t believe the outcome in this case will encourage other people to speak out publicly about ongoing lawsuits, but notes it may prevent defendants from acting too quickly to quash public comment.

“It puts a limit on a defendant’s ability to try and prevent a situation like this, where the plaintiff is essentially making public her allegations in a claim on issues that are of public interest,” he says.

If the case had been a straight employment matter, it would have been different, says Radnoff, because a wrongful dismissal issue between an employee and employer is not a matter of public interest.

“It’s an issue that’s related to things insurance companies are accused of doing, not just in Brampton, but all over North America, so it’s clearly a matter of public interest, and the woman is saying, ‘I was fired because I wanted to complain about this,’” he says.

The motion was resolved in a manner that is conducive to protecting public comment on matters of public interest.

“This decision demonstrates the legislation can have positive value,” says Radnoff. “It doesn’t create some sort of free-for-all, but where a plaintiff does raise a legitimate matter of public interest and does make public comments about it that are careful and follow what’s alleged in the statement of claim, she should not be prevented from doing that.”

 

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