Protecting against reputational harm

Authors: Rahool P. Agarwal, Fahad Siddiqui Publication | September 2018

On August 30, 2018 the Court of Appeal for Ontario issued six long-awaited decisions on legislation targeting strategic lawsuits against public participation. The seminal judgments are the first appellate comment on Ontario’s so-called anti-SLAPP legislation and have significant implications for defamation suits brought to protect against threats to reputational damage.

In November 2015, Ontario enacted legislation creating a powerful pretrial procedure allowing defendants to seek dismissal of claims made against them that “arise from an expression…that relates to a matter of public interest.” As the then-attorney general explained, the legislation was designed with the aim of preventing the strategic use of lawsuits by deep-pocketed plaintiffs to stifle free expression.

The legislation created sections 137.1 to 137.5 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (the Provisions). The Provisions were soon invoked in dozens of defamation and other cases by defendants who had been sued for making statements about a range of enterprises and their leadership teams. Differences emerged between judicial interpretations of the Provisions. Six judgments were eventually appealed to and heard together by the Court of Appeal for Ontario, marking the first time the court had occasion to consider these important issues. 

In the leading judgment in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 689, Justice David H. Doherty, on behalf of a unanimous panel of the court, elaborated the key legal principles for courts deciding motions brought under the Provisions:

  • In determining whether a proceeding arises from an expression relating to a matter of public interest, the “public interest” is to be interpreted broadly without regard to the merit or manner of expression, nor the motive of the author. The expression may be false, intemperate, or even harmful to the public interest, and still remain sufficiently related to the public interest to meet the threshold.1 The determination will be an objective one, taking into account the entire context within which the expression was made.

  • If the moving party satisfies this threshold, the responding party bears the onus of establishing that: (1) it could be reasonably said, on an examination of the motion record, that the claim has substantial merit; (2) a trier of fact could conclude that none of the defences advanced would succeed; and (3) the claim is not merely a “technically valid cause of action” for “insignificant harm.”

  • A successful moving party is entitled to its costs of the motion on a full indemnity basis except in exceptional circumstances, and a successful responding party is not normally entitled to its costs unless the motion was an abuse of the Provisions or in other exceptional circumstances.

We expect the decisions to shape the landscape of defamation litigation moving forward, and they should be carefully considered in any effective crisis management strategy.

The authors wish to thank articling student Maha Mansour for her help in preparing this legal update.

Footnote

1 Notably, in an echo of other first-instance judgments, the Court of Appeal commented that hate speech and threats or acts of violence are highly unlikely to be protected. See e.g. Paramount v. Johnston, 2018 ONSC 3711; DEI Films Ltd. v. Tiwari, 2018 ONSC 4423; Hudspeth v. Whatcott, 2017 ONSC 1708.


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