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Civil Litigation - SLAPP - Harm-Expression Balancing (2)

. Hansman v. Neufeld

In Hansman v. Neufeld (SCC, 2023) the Supreme Court of Canada reviewed the SLAPP developments in Canadian law:
[1] At the core of defamation law are two competing values: freedom of expression and the protection of reputation. Each is essential to maintaining a functional democracy. This appeal presents an opportunity to clarify the proper equilibrium between these two values where the expression at issue relates to a matter of public interest.

[2] Defamation suits are a way to vindicate an individual’s personal or professional reputation in the face of attack, but can have the undesirable effect of suppressing the open debate that is the cornerstone of a free and democratic society. For this reason, certain provincial legislatures have targeted strategic lawsuits against public participation (SLAPPs), or actions that disproportionately suppress free expression on matters of public interest. This case concerns the application of s. 4 of British Columbia’s anti-SLAPP statute, the Protection of Public Participation Act, S.B.C. 2019, c. 3 (PPPA).

[3] The defamation suit at the heart of this proceeding arises out of a high‑profile public debate — spanning traditional print media, the internet, rallies, protests, and a local election — on British Columbia’s efforts to combat discrimination against transgender and other 2SLGBTQ+ youth.

[4] The parties are both local public figures. Barry Neufeld, a public school board trustee in Chilliwack, British Columbia, made online posts criticizing a provincial government initiative designed to equip educators to instruct students about gender identity and sexual orientation. Mr. Neufeld’s posts triggered significant local controversy, spurring protests and calls for Mr. Neufeld to resign. Many considered his comments to be derogatory of transgender and other 2SLGBTQ+ individuals. Glen Hansman, a gay man, teacher, and former president of the British Columbia Teachers’ Federation (BCTF), a large teachers’ union in the province, was prominent among the dissenting voices and made statements to media. Mr. Hansman called Mr. Neufeld’s views bigoted, transphobic, and hateful; accused him of undermining safety and inclusivity for transgender and other 2SLGBTQ+ students in schools; and questioned whether he was suitable to hold elected office.

[5] Mr. Neufeld sued for defamation. Mr. Hansman then applied to have Mr. Neufeld’s defamation action dismissed as a SLAPP under s. 4 of the PPPA. The core feature of the PPPA is that it instructs courts to dismiss even meritorious claims where the public interest in protecting the defendant’s freedom of expression outweighs the public interest in remedying the harm done to the plaintiff. It also requires the plaintiff to meet a merits threshold by demonstrating grounds to believe that the underlying proceeding has substantial merit and that the defendant has no valid defence in the proceeding.

[6] The chambers judge found that Mr. Neufeld’s defamation action had the effect of unduly suppressing debate on matters of public interest and dismissed the suit (2019 BCSC 2028, 59 C.C.E.L. (4th) 205). The chambers judge held both that Mr. Hansman had a valid fair comment defence and that the value in protecting his expression outweighed the resulting harm done to Mr. Neufeld. The Court of Appeal disagreed on both counts and reinstated the action (2021 BCCA 222, 50 B.C.L.R. (6th) 217).

[7] I agree with the chambers judge. Mr. Neufeld argued in the courts below and in this Court that he only criticized a policy; he never expressed hatred towards the transgender community, nor did his words create an unsafe school environment for transgender students. But his submissions miss the mark. Mr. Neufeld’s right to criticize a government initiative is not in dispute. Rather, the central issue is whether Mr. Hansman had a right to respond to Mr. Neufeld in the way he chose without the threat of civil liability. In my view, he did.

[8] The fair comment defence asks whether a person could honestly hold the views Mr. Hansman expressed and whether Mr. Hansman’s statements related to a matter of public interest and were recognizable as comments based on facts. The chambers judge found that Mr. Neufeld did not adequately challenge any of these elements and he was entitled to dismiss the proceeding on this basis.

[9] Even if Mr. Neufeld had discharged his burden as to the fair comment defence, however, the chambers judge was entitled to dismiss the defamation claim because the public interest in protecting Mr. Hansman’s expression is not outweighed by the limited harm to Mr. Neufeld. Mr. Hansman’s words were not a disproportionate or gratuitous response to Mr. Neufeld’s statements, and there is a substantial public interest in protecting his counter-speech. Mr. Hansman spoke out to counter expression that he and others perceived to be discriminatory and harmful towards transgender and other 2SLGBTQ+ youth — groups especially vulnerable to expression that reduces their worth and dignity in the eyes of society and questions their very identity. Not only does protecting Mr. Hansman’s expression preserve free debate on matters of public interest, it also promotes equality, another fundamental democratic value.


[52] Given the substantial similarity between the Ontario and British Columbia laws, this Court’s interpretation of s. 137.1 in Pointes and Bent applies with equal force to s. 4 of the PPPA.
The court's analysis, addressing largely the harm-expression balancing element of the SLAPP test, extends to paras 46-94.

. Boyer v. Callidus Capital Corporation

In Boyer v. Callidus Capital Corporation (Ont CA, 2023) the Court of Appeal considered the harm/public-expression balancing element of a SLAPP motion:
Public Interest Hurdle: Section 137.1(4)(b)

[50] Section 137.1(4)(b) has been referred to as the crux of the analysis.[1] Here, Callidus must satisfy the court that the harm suffered as a result of the expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. While it is not, strictly speaking, necessary to address this stage in light of my conclusion on the merits-based stage,[2] for the sake of completeness I will do so.

[51] Callidus has neither pleaded nor shown that the statements in the Statement of Claim against it has or will cause any harm. Nor is there evidence from which harm can be inferred. While failure to suffer a loss is not necessarily a bar to a breach of fiduciary duty claim,[3] the failure to itemize or explain how the millions in damages were calculated weighs against the public interest in permitting the proceeding to continue.

[52] On the other hand, there is a public interest in protecting Mr. Boyer’s expression in relation to the business practices of a major financial entity.

[53] The weighing exercise inherent in this stage of the analysis was discussed by Côté J. She referred to Doherty J.A.’s comments in Platnick v. Bent, 2018 ONCA 687, 426 D.L.R. (4th) 60, where he held that when certain indicia are present, the weighing exercise favours granting the s. 137.1 motion. Those indicia are: (1) a history of the plaintiff using litigation or the threat of litigation to silence critics; (2) a financial or power imbalance that strongly favours the plaintiff; (3) a punitive or retributory purpose animating the plaintiff’s bringing of the claim; and (4) minimal or nominal damages suffered by the plaintiff. Côté J. cautioned that, because this stage is a public interest weighing exercise, these four indicia may bear on the analysis only to the extent that they are tethered to the text of the statute and the considerations explicitly contemplated by the legislature. She added, at paras. 80 and 81:
Accordingly, additional factors may also prove useful. For example, the following factors, in no particular order of importance, may be relevant for the motion judge to consider: the importance of the expression, the history of litigation between the parties, broader or collateral effects on other expressions on matters of public interest, the potential chilling effect on future expression either by a party or by others, the defendant’s history of activism or advocacy in the public interest, any disproportion between the resources being used in the lawsuit and the harm caused or the expected damages award, and the possibility that the expression or the claim might provoke hostility against an identifiably vulnerable group or a group protected under s. 15 of the Charter or human rights legislation. I reiterate that the relevance of the foregoing factors must be tethered to the text of s. 137.1(4)(b) and the considerations explicitly contemplated by the legislature to conduct the weighing exercise.

Fundamentally, the open-ended nature of s. 137.1(4)(b) provides courts with the ability to scrutinize what is really going on in the particular case before them: s.137.1(4)(b) effectively allows motion judges to assess how allowing individuals or organizations to vindicate their rights through a lawsuit — a fundamental value in its own right in a democracy — affects, in turn, freedom of expression and its corresponding influence on public discourse and participation in a pluralistic democracy. [Emphasis added]
[54] Here, the factors that tilt the balance in favour of granting the motion dismissing the counterclaim are:
1. A financial imbalance between the parties.

2. A punitive or retributory purpose in bringing the claim.

3. The minimal link between Mr. Boyer’s conduct and any damages suffered by Callidus.

4. Callidus’ acknowledgement that the $150 million claimed was baseless.

5. The chilling effect the action would have on other employees bringing claims or raising issues relating to toxic work environments.

6. The fact that the counterclaim was initiated over five years ago and after numerous motions, case conferences and examinations, Callidus has not taken steps to advance the claim on its merits. The proposed amendment to reduce the damages claimed to $3 million was delivered on March 31, 2022. Still no itemization to substantiate the quantum has been produced.
[55] When the context is scrutinized, what is “really going on” with the counterclaim is an attempt to silence a former employee seeking recovery in his wrongful dismissal claim and create a chilling effect for other employees.

[56] I note that, in Park Lawn Corporation v. Kahu Capital Partners, 2023 ONCA 129, this court recently determined that a counterclaim should not be dismissed under s. 137.1 but allowed to continue. The present case is distinguishable. First, the motion judge in Park Lawn had found as fact that there was significant harm to the responding party’s reputation. Second, if the s. 137.1 motion succeeded in dismissing the counterclaim and the main action was unsuccessful, the responding party’s reputational damages would be unrecoverable. The weighing exercise conducted by the motion judge and upheld by this court thus favoured allowing the counterclaim to continue. As I have indicated, the weighing exercise here clearly favours dismissing the counterclaim.
. Park Lawn Corporation v. Kahu Capital Partners Ltd.

In Park Lawn Corporation v. Kahu Capital Partners Ltd. (Ont CA, 2023) the Court of Appeal considered an appeal of a dismissal of a SLAPP motion brought by the plaintiff/appellant against a counterclaim for breach of contract and defamation. On appeal the only issue was expression/harm balancing under CJA 137.1(4)(b), which is dealt with in these quotes:
d) Harm Analysis

[43] With these principles in mind, I turn to the first of the appellants’ arguments on appeal. The appellants submit that the motion judge disregarded this court’s decision in Levant v. De Melle, 2022 ONCA 79, 82 C.C.L.T. (4th) 48, leave to appeal requested, [2022] S.C.C.A. No. 88 (Levant), and [2022] S.C.C.A. No. 87 (Rebel News Network Ltd.), by failing to identify or rely on any evidence of specific harm or causation. They state that there had to be evidence from which the motion judge could draw an inference of likelihood of harm and the relevant causal link between alleged harm and the publication. They submit that it is especially important for there to be specific evidence of harm in this case because Kahu is a corporation. Moreover, Kahu attributed any harm suffered to the Park Lawn litigation, not the statements published in the Funeral Service Insider. The appellants submit that there was no evidence of harm attributable to the impugned expression itself.

[44] In addition, the appellants submit that any reputational harm to Kahu was limited given that its reputation was already blemished, the audience for the publication was restricted to subscribers, Kahu had no clients when the article was published and, in any event, it had only ever provided services to Park Lawn. The appellants contend that harm to Kahu from the statements was necessarily nominal at best.

[45] In response, Kahu submits that the statements in the Funeral Service Insider article make serious allegations from which the likelihood of reputational harm can be readily inferred. It contends that the motion judge correctly recognized that the previous litigation and the allegedly defamatory statements are “flip sides of one factual coin”, and the existence of the litigation cannot serve to immunize the appellants from the defamation counterclaim. Further, Kahu notes that while Funeral Service Insider is a subscription-only publication, its target audience has direct control over the allocation of investment mandates to Kahu. It also alleges it had to suspend marketing of certain funds and lost future potential clients.

[46] Various principles on the issue of harm and causation in anti-SLAPP motions are apparent from the Pointes Protection and Bent decisions:
- Section 137.1(4)(b) requires both: (i) the existence of harm, and (ii) causation, that is, the harm was suffered as a result of the moving party’s expression.

- Either monetary or non-monetary harm will suffice. The harm need not be monetized or quantified. Reputational harm is also relevant to the harm inquiry even if at this stage it is not quantifiable. “[R]eputation is one of the most valuable assets a person or a business can possess”: Pointes Protection, at para. 69, citing Legislative Assembly of Ontario, Official Report of Debates (Hansard), No. 41A, 1st Sess., 41st Parl., December 10, 2014, at p. 1971 (Hon. Madeleine Meilleur); see also Bent, at para. 146.

- A fully developed damages brief is not required.

- A responding party need not prove harm or causation but must simply provide evidence from which an inference of the likelihood of harm and causation may be drawn. No definitive determination of harm or causation is required.

- General damages are presumed in defamation actions and this alone is sufficient to constitute harm, but a responding party must provide support for a claim of special damages.

- Causation is a case-by-case inquiry undertaken by the motion judge.
[47] When examining the issue of harm, there is a distinction between the establishment of harm (which the above points address) and the magnitude of the harm. The latter goes to the assessment of whether the harm is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. As Côté J. stated in Bent, at para. 144:
General damages are presumed in defamation actions, and this alone is sufficient to cause harm: Pointes Protection, at para. 71; Torstar, at para. 28. However the magnitude of the harm will be important in assessing whether the harm is sufficiently serious that public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression: Pointes Protection, at para. 70. General damages in the nominal sense will ordinarily not be sufficient for this purpose.
[48] In assessing whether harm is sufficiently serious such that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression, this court held, in Lascaris v. B’nai Brith Canada, 2019 ONCA 163, 144 O.R. (3d) 211, at para. 41, leave to appeal refused, [2019] S.C.C.A. No. 147, that some statements are so likely to cause serious harm to a person’s reputation that the likelihood of harm being caused can be inferred.[3]

[49] In CUPW, which was decided after Pointes Protection and Bent, this court similarly recognized that harm may be inferred when the alleged defamatory statements are serious. In that case, the motion judge dismissed an anti-SLAPP motion brought against the plaintiff union. On appeal, the defendants argued in part that the harm alleged by the plaintiff was not serious enough to permit the action to continue and that there was no evidence of specific, provable, identifiable harm. Citing this court’s decision in Lascaris, this court dismissed that argument. Jamal J.A., writing for a unanimous panel, held that where, as in Lascaris, the alleged defamation is significant, it is open to a motion judge to find that harm can be inferred: at para. 39. The plaintiff in that case was an organization, rather than an individual.

[50] More recently, in Levant, this court again observed that harm can at times be presumed in defamation cases, but cautioned that presumed harm is generally insufficient for the purposes of s. 137.1, particularly where the plaintiff is a corporation whose reputation is not “unblemished”: Levant, at para. 51; see also paras. 52, 67-68. In Levant, the court reasoned that any presumption of harm to the plaintiff corporation in that case had to be limited, not only because it was a corporation, but also because there was evidence that its reputation was not unblemished: Levant, at para. 52. That said, a corporation is not precluded from being awarded general damages for defamation: Barrick Gold Corp. v. Lopehandia (2004), 2004 CanLII 12938 (ON CA), 71 O.R. (3d) 416 (C.A.), at para. 49. Moreover, as stated in Pointes Protection, at para. 70:
[S]ince s. 137.1(4)(b) is, in effect, a weighing exercise, there is no threshold requirement for the harm to be sufficiently worthy of consideration. The magnitude of the harm becomes relevant when the motion judge must determine whether it is “sufficiently serious” that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. In other words, the magnitude of the harm simply adds weight to one side of the weighing exercise.
[51] In the case under appeal, the motion judge correctly described the legal principles applicable to the third part of the test on an anti-SLAPP motion and considered the appellants’ submissions on the elements of the test. He made numerous findings of harm and causation. First, he found that the appellants had made an implicit concession that Kahu did suffer some damages. Second, he inferred that repetition of allegations of misconduct in the Funeral Insider Report would cause additional harm beyond the harm caused by the appellants’ lawsuit. He found that Mr. Green’s statements conveyed the message that Kahu participated or knowingly assisted in Mr. Clark’s wrongdoing, that Kahu was not to be trusted because it was guilty of a crime, fraud, dishonesty, immorality and/or other dishonourable conduct, and that prima facie, the statements would tend to lower Kahu’s reputation.

[52] Moreover, the motion judge found that Mr. Green intended his words to have consequences to Kahu’s reputation. To use the motion judge’s term, it would be ironic for Mr. Green to make these statements in the hopes that they would convince others of Kahu’s misconduct, and then, for the purposes of the anti-SLAPP motion, assert that these statements could not have had any effect on Kahu’s reputation. As in Lascaris and CUPW, and reading the record as a whole, it was open to the motion judge to conclude that the statements were so likely to cause serious harm to Kahu’s reputation that the likelihood of harm being caused could be inferred.

[53] As for Kahu’s reputation, the motion judge did not make a finding that it was blemished. On the contrary, he observed that:
- Park Lawn’s action against Mr. Clark was settled without any admission of liability or damages award;

- Park Lawn’s action for knowing assistance against the defendants, including Kahu, is based on the same facts that underlaid the settled claim against Mr. Clark; and

- it was plausible, based on the evidentiary record, that a trial judge could find no breach of fiduciary duties by Mr. Clark insofar as Kahu was concerned, and that there was no knowledge or assistance by Kahu.[4]
[54] The motion judge’s analysis reveals no reviewable error. He correctly set out the applicable legal principles and was satisfied that Kahu suffered harm based on the evidence before him and the inferences he drew from it. I would dismiss this ground of appeal.

e) The Weighing Exercise

[55] The appellants’ second ground of appeal is that the motion judge failed to adequately weigh the harm to Kahu against the public interest in protecting the appellants’ expression on matters of the public interest. He simply pointed to a single consideration, namely that the subject matter of Kahu’s counterclaim overlapped with Park Lawn’s underlying claim.

[56] I disagree. The motion judge wove his weighing throughout his reasons, culminating in his conclusions at para. 105 and following. He stepped back and determined what this anti-SLAPP motion was all about. Although the motion judge did not compartmentalize his analysis to any particular degree, he did what he was supposed to do. He responded to the exhortation in Pointes Protection and Bent that, in the third part of the test, a motion judge is to scrutinize what is really going on in the case.

[57] Here the motion judge conducted a thorough review and examined the parties’ history. Legitimately in my view, he was also influenced by the fact that the litigation between the parties would not be resolved by granting the appellants’ motion, that the anti-SLAPP motion was inspired by strategic and tactical considerations, and that the appellants had assumed the risks associated with litigating outside the confines of the court proceeding. In my view, these were permissible considerations. The motion judge was mindful of the purposes that animated the anti-SLAPP provision which in turn assisted him in finding the right mass for the weighing pan of the scale.

[58] Lastly, the presence of a counterclaim will not inevitably preclude the granting of an anti-SLAPP motion. That said, an anti-SLAPP motion seeking to dismiss a counterclaim in whole or in part may ultimately add expense and delay, both of which are anathema to the purposes of s. 137.1. In this case, Park Lawn’s action against the defendants will continue as will Kahu’s counterclaim for damages for breach of contract regardless of the outcome of the anti-SLAPP motion. As the motion judge stated:
Remarkably, unlike most anti-SLAPP motions, if Park Lawn and Mr. Green’s motion succeeds, the proceedings will not be done. Park Lawn’s action will go forward, and it will seek to prove that what Mr. Green expressed to Funeral Service Insider was true. However, if the anti-SLAPP Motion succeeds, and Park Lawn fails to prove its case, Kahu Capital will be precluded from claiming damages [for] the harm caused to its reputation by Park Lawn’s failure to prove that what Mr. Green said was true. An anti-SLAPP motion designed to suppress strategic litigation is being used very strategically and tactically.
[59] I would dismiss this ground of appeal.
. Bangash v. Patel

In Bangash v. Patel (Ont CA, 2022) the Court of Appeal, in a SLAPP defamation appeal case, considered the CJA 137.1(4)(b) 'harm-expression balancing' issue:
[12] Second, the appellant submits that the motion judge erred in his weighing exercise. We also would not give effect to this submission. The motion judge was alive to the facts in dispute and the values in play. He properly weighed the harm to the appellant and the public interest in allowing the action to proceed against the public interest in protecting the expression in issue. He also legitimately addressed the disproportionality between the resources required for the litigation and the expected damages award as a consideration in his weighing exercise: see Pointes Protection, at para. 80. Ultimately, having identified the correct test and considered appropriate factors, the decision was his call to make. We would not interfere. In light of this disposition, there is no need to address the appellant’s third ground of appeal, relating to the “no valid defence” prong of the test under s. 137.1(4).
. Levant v. DeMelle

In Levant v. DeMelle (Ont CA, 2022) the Court of Appeal conducted a classic SLAPP-defamation (libel) appeal analysis. In this quote it considers the SLAPP harm/expression balancing:
c) The weighing of public interests

[66] The motion judge concluded that the weighing exercise required by s. 137.1(4)(b) favoured the respondent because, as was the case in the Al Jazeera action, the appellants had not led any evidence of “particular or specific economic harm or damage to their reputation”. Largely for the same reasons that I have set out above in considering the weighing exercise in the Al Jazeera motion, I agree with the motion judge’s conclusion, but not with his analysis.

[67] I begin by acknowledging that the harm analysis is different in this case given the personal presence of Mr. Levant as a plaintiff. The motion judge did not address that distinguishing factor. Some level of damage to Mr. Levant’s reputation can be presumed from the defamatory statement. However, that is not sufficient for the purposes of s. 137.1(4)(b).

[68] The presumption of damages in a defamation action involving an individual only goes so far. While it may be sufficient to establish the existence of damages, it is not sufficient to establish the level of those damages. This point is addressed in the decision of the Court of Appeal (England and Wales) in Lachaux v. Independent Print Ltd., [2017] EWCA Civ. 1334, [2018] 2 W.L.R. 387, where that court was dealing with a statutory provision intended to limit actions for defamation and create a higher threshold for making out a defamation claim – a not dissimilar exercise as s. 137.1 engages. On the issue of the presumption of damages in a defamation case, the court said, at para. 72:
[T]here is no presumption, at law, of serious damage in a libel case. Accordingly that, under s. 1(1), has to be proved. The point nevertheless remains that serious reputational harm is capable of being proved by a process of inference from the seriousness of the defamatory meaning. [Emphasis in original.]
[69] I accept that the “neo-Nazi sympathizer” comment is a serious one. I would not, however, draw an inference that it resulted in serious reputational harm to Mr. Levant on the record in this case. First, the statement was fairly quickly removed from the article in question. Second, the article itself drew limited attention, given the evidence that it generated slightly fewer than 16,000 views on the internet. Third, is the evidence regarding the state of Mr. Levant’s reputation as reflected in the affidavits filed on behalf of the respondent. Balanced against all of that is the sole statement of Mr. Levant in his affidavit:
I believe that the dissemination of these defamatory statements has damaged my reputation in this regard, and accordingly, Rebel News and I should be entitled to compensation.
That statement is not only self-serving, it is completely devoid of any foundation for the belief.

[70] Finally, on this point, when a person injects themselves into public debate over a contentious topic, they must expect that they are going to be met with some measure of rebuttal, perhaps forceful rebuttal, by those who take an opposite view. The case of WIC Radio is an example of that reality. The evidence demonstrates that the appellants quite readily inject themselves into the public debate on many of these types of issues. Indeed, there is evidence that they consider that to be part of the rationale for their existence. The appellants should not be surprised when they are then met with a response – even a very forceful response. While such responses do not justify crossing the line into defamatory speech, they are a factor to consider in assessing the level of damages that the defamatory aspect of the response may create. As Binnie J. said in WIC Radio, at para. 4:
We live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones.
[71] As I concluded with respect to the Al Jazeera motion, the appellants have failed to lead evidence of any specific harm or any level of serious harm. Balanced against whatever harm may be presumed, is the public interest in protecting freedom of expression and in having robust debates on matters of public importance. I agree with the motion judge that the appellants failed to establish, in the words of s. 137.1(4)(b), that “the harm likely to be or have been suffered by the [appellants] as a result of [the respondent’s] expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression”.


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Last modified: 23-05-23
By: admin