Appellate, Defamation

OCA decision shows continuing problems with anti-SLAPP law

By Staff

Courts are still dealing with the fallout from the overbreadth of Ontario’s controversial legislation aimed at combating the apparent problem of “Strategic Lawsuits Against Public Participation” (SLAPP), Toronto defamation and appellate counsel Brian Radnoff tells

The Ontario Court of Appeal recently restored a libel claim by a former class-action litigator-turned-politician against a Jewish charity group that suggested he supported terrorists, in the process overturning a lower court judge’s decision to dismiss the action under the province’s anti-SLAPP statute.

Radnoff, partner and commercial litigator with Dickinson Wright LLP, has been a consistent critic of the law, which added new sections to the province’s Courts of Justice Act allowing defendants to move for dismissal of actions arising from expressions related to a “matter of public interest," and welcomed the appeal court’s ruling.

“The fact that this case had to go to the Court of Appeal demonstrates the overbroad nature of the province's anti-SLAPP legislation,” he says. “The problem that remains is defendants know that all they have to do is demonstrate that their comments relate to a matter of public interest. It’s not a difficult hurdle to overcome."

The most recent case does not fit into the typical situation that the law was drafted to tackle, Radnoff says. He explains that the province's anti-SLAPP legislation was conceived as a tool to redress the balance when wealthy plaintiffs, such as large corporations and developers, target lawsuits against media outlets or relatively vulnerable individuals in order to stifle political discussion about their projects.

But Radnoff says the perceived problem was never studied in detail, and that legislators instead relied on anecdotal evidence to pass anti-SLAPP measures.

“They ended up passing legislation that goes much further than they intended and really negatively impacts on plaintiffs’ ability to bring defamation actions in Ontario,” he says, adding that judges have been left to clear up confusion about the interpretation of the provisions in individual cases.

After Superior Court judges took wildly varying approaches, the Court of Appeal provided some direction after hearing five appeals together.

But the most recent case before the appeal court fell between the cracks, and the unanimous three-judge panel noted that any power imbalance likely favoured the defendant, a well-resourced community organization, rather than the plaintiff.

“It was entirely foreseeable that defendants would rely on the legislation in contexts where the drafters never meant it to apply, and it will be interesting to see if defendants keep trying to bring motions like this,” says Radnoff, who was not involved in the matter and comments generally.

The plaintiff visited Israel as part of his role as Green Party justice critic, where he met with the father of a man shot to death by security forces following his alleged murder of civilians on a Jerusalem bus.

Regardless of the man’s guilt, the politician criticized both his “extrajudicial” killing and the subsequent treatment of his father by the Israeli government, prompting the charity to claim that he advocated “on behalf of terrorists.”

The politician launched his action in 2017 after the charity repeated its claim that he supports terrorists, in spite of his specific and repeated condemnation of attacks on civilians and civilian infrastructure.

The charity moved to have the action dismissed under the anti-SLAPP law, and a judge concluded that its comments were in the public interest. That, in turn, shifted the burden to the plaintiff to show that the defendant had no valid defence.

But the judge found that the defendant’s beliefs only had to be genuinely held, rather than reasonable, in order to ground an arguable defence of fair comment.

“Because it is arguable that a person could honestly believe that support for the [family] constitutes support for terrorists, a valid defence is available to the defendant,” the judge wrote.

On appeal, the panel ruled the motion judge erred in her approach to the defences available to the defendant. Rather than showing a defence has no hope of success, all plaintiffs need to show “is that it is possible that the defence would not succeed.”

“In my view, a reasonable trier could conclude that the defence of fair comment would not succeed. It would be open to a trier to conclude that the statements made about the appellant — namely, that he supported terrorists — were uttered as statements of fact, not as statements of opinion,” the appeal court concluded.

“Further, even if the statements are viewed as opinion, a trier could also conclude that, on the available facts, a person could not honestly express that opinion based on the proved facts. The fact that a person supports a parent, whose child has committed a terrible act, does not make that person a supporter of the child’s actions. A trier might also conclude that the respondent’s repetition of the statements, after the appellant expressly disavowed support for terrorism, made the defence of fair comment unavailable.”

This reading of the fair comment defence fits with the traditional approach of courts in Ontario, Radnoff notes.

“There is a large amount of law to support the idea that when negative comments are made imputing immorality or accusing someone of impropriety, you can’t hide behind the defence of fair comment,” he says. “They do not qualify as opinions, and instead are treated as facts that must be proven.

“This is another issue that we will be dealing with for some time, particularly given today’s internet comment culture, when people are quick to say negative things, but then claim, ‘it’s just my opinion,’” Radnoff adds.

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