Civil Litigation, Defamation

Premier's anti-SLAPP law could kill her defamation suit

By AdvocateDaily.com Staff

Ontario Premier Kathleen Wynne’s defamation action against opposition leader Patrick Brown may fall foul of her own government’s anti-SLAPP legislation, Toronto litigator and mediator Howard Winkler tells AdvocateDaily.com.

Wynne followed through on a threat to sue Brown following a dispute over comments he made when the premier was scheduled to appear as a witness at a trial of two members of her party in Sudbury, Ont., involving allegations of bribery under the Election Act.

Brown refused to apologize for comments that suggested Wynne herself was on trial, rather than testifying as a witness, and denied his statements were defamatory.

Winkler, a defamation lawyer with over 30 years of experience, and principal of Winkler Dispute Resolution, says he doubts the case will ever get to trial, noting that it reminds him of a suit launched by Wynne against Brown’s predecessor, which eventually settled out of court.

In any case, he says Brown will have a strong case for dismissal under provisions added to the province’s Courts of Justice Act to deal with Strategic Lawsuits Against Public Participation (SLAPP).

Passed with all-party support at Queen’s Park, the so-called anti-SLAPP law, which came into force in November 2015, allows defendants to move for dismissal of actions if their comments are considered to be related to a “matter of public interest.”

“The Act provides a screening process for weeding out cases where comments were made on a matter of public interest — even if they were wrong — as long as there was, in the words of the Attorney General’s panel recommending the legislation, no significant harm caused,” Winkler says. “In my view, this is exactly the kind of case it was meant to capture, and it’s hard to imagine that it could ever survive this kind of screening motion.”

He says Wynne will struggle to make a case that she has suffered any significant harm because of the way the suit has played out in public.

“If the real sting in the statements was the suggestion that the premier was on trial, then media reports have made it very clear that she was not, in fact, the accused, but rather just a witness,” Winkler says. “I don’t think the public has been confused or misled by the comment.

“It’s hard to imagine these comments have caused any greater damage to the premier’s reputation than the probably more inflammatory comments made about her in the legislature, where they are protected by absolute privilege, both prior and subsequent to Brown’s statements,” he adds.

If the matter ever makes it to court, Winkler says a judge is unlikely to look kindly on either side.

“I’m not sure it’s in anyone’s interest for scarce judicial resources to be expended on a case such as this,” he says.

Instead, he says the conduct of the parties suggest it’s “more driven by politics than by any legal principles at play.”

“It seems we’re really dealing with political manoeuvring, and the question is whether one side or the other will blink,” Winkler adds.

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