Guidance needed from OCA on anti-SLAPP provisions

By Kirsten McMahon, Associate Editor

A recent ruling dismissing a libel action further highlights that more direction is needed from the Ontario Court of Appeal regarding the Protection of Public Participation Act, Toronto commercial litigation and defamation lawyer Brian Radnoff tells

Radnoff, a partner with the Toronto office of Dickinson Wright, explains legislation aimed at combating the apparent problem of “Strategic Lawsuits Against Public Participation” (SLAPP) is extremely defendant-friendly.

“We need more direction because there are issues related to the legislation including the standard of proof the responding party has to show,” he says. “It's becoming a common tactic of defendants to stop defamation lawsuits.”

The most recent decision involves a libel action brought against an advocacy organization after it suggested in an online post that a prominent class-action litigator turned political activist advocated on behalf of terrorists.

Law Times reports the plaintiff’s $200,000 lawsuit was thrown out by Ontario Superior Court of Justice Helen Rady, “who found that the organization met the legal test set out in the provincial anti-SLAPP statute on the basis of fair comment.”

The plaintiff says he supports the anti-SLAPP provisions, but he believes it was not applied properly in this litigation.

“My case is the exact opposite,” he tells Law Times.

Radnoff, who was not involved in the matter and comments generally, says this case is a good demonstration of why the anti-SLAPP legislation is problematic.

“Here’s an advocacy organization stating that a person supports terrorism and he can't sue. There’s no basis to reach the conclusion that this lawsuit in any way prevents the advocacy organization's ability to participate publicly,” Radnoff says.

“What this means is that the tenor of public debate is going to be less restrained with no recourse," he says.

"Why should organizations be permitted to accuse people, public figures or otherwise, of supporting terrorism and not even have the action go to trial? They can stop any lawsuit in its tracks immediately,” Radnoff says.

He says it’s going to be very difficult for anyone to bring a defamation action as a plaintiff has to show there's no defence with any merit, which is a very high threshold.

“All the defendant has to show is it's a matter of public interest, which is extremely broad definition,” Radnoff says.

While he says the plaintiff may not have been successful at trial, he should have a chance to prove his case.

Law Times reports the appeal court has heard a number of cases together on the legislation, but the rulings are still on reserve almost one year later.

“At the end of the day — and I've said this many times in many different ways — if this is the way the legislation was designed to work, it's bad legislation,” Radnoff says. “If it is designed to prevent plaintiffs from pursuing these types of actions, then the legislation is just wrong. More guidance is badly needed.”

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