Defamation

Pilot’s victory classic application of anti-SLAPP law: Winkler

By AdvocateDaily.com Staff

The dismissal of an airline’s $10-million defamation claim against a former pilot is a textbook case of anti-SLAPP legislation in action, says Toronto litigator and mediator Howard Winkler, who acted for the pilot.

As the National Post reports, the airline sued its former employee after he self-published a book that was critical of the company’s safety record.

But Ontario Superior Court Justice Shaun O’Brien threw out the case under relatively new provisions of the province’s Courts of Justice Act designed to deal with Strategic Lawsuits Against Public Participation (SLAPP), which allow for the dismissal of actions involving comments on a “matter of public interest.”

Winkler, principal and founder of Winkler Dispute Resolution, tells AdvocateDaily.com that his client was extremely relieved by the decision.

“The cost of defending the action and the potential liability would have ruined him,” he says. “When you consider the importance of the nature of his speech, the indicia of SLAPP, combined with the minimal amount of damage, I think you have a classic application of what SLAPP legislation is designed to do.”

The pilot’s book was critical of his former employer. He also gave interviews as part of a Post investigation into the safety and maintenance practices of the airline, which strongly denied all complaints, pointing to its success in passing a rigorous international safety audit.

The newspaper says it was threatened with a lawsuit following the publication of its investigation, but the airline ultimately proceeded against the pilot alone and has also announced its intention to appeal.

Despite the book’s “provocative and sensationalized” wording, O’Brien concluded that any damage done was outweighed by the public interest in the debate around an issue as serious as airline safety.

“[The defendant] spoke out on a matter of significant public importance,” the judge wrote. “He caused limited harm to [the airline] with his self-published book, but was silenced by a much more intimidating litigant.”

According to the Post, the pilot’s book sold just 247 copies online before the airline convinced the retailer to stop selling it, while the pilot himself halted his own sales once the lawsuit was launched. Those facts showed that the action had interfered with the defendant’s ability to express himself, the judge found.

“He has said he does not feel free to pursue an important conversation about the safety of regional airlines and, in particular, [the airline],” she wrote. “In other words, actual libel chill is an issue here.”

Since its passage with all-party support at Queen’s Park in November 2015, Winkler says the anti-SLAPP legislation has been well-tested in court. After a number of Superior Court motion decisions, the Court of Appeal weighed in last summer after hearing six appeals together.

He says those cases and the most recent decision should give all plaintiffs in defamation actions pause.

“At this point in time, we’ve had the benefit of a good number of decisions, and I think there is a real incentive for plaintiffs to assess, at the very earliest stage, whether the legislation will apply to their particular complaint and whether it’s worth proceeding,” Winkler says.

Still, he warns that the situation could change once the Supreme Court of Canada hears appeals in two cases later this year.

“Everyone will be waiting to see what the Supreme Court has to says about the proper application of this legislation,” says Winkler, who will appear for one of the parties at the nation’s top court at the hearing in November.

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