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Civil Litigation Dicta - SLAPP - Harm-Expression Balancing (4). 40 Days for Life v. Dietrich
In 40 Days for Life v. Dietrich (Ont CA, 2024) the Ontario Court of Appeal considered the CJA s.137.1(4)(b) 'harm-expression balancing' element to the SLAPP dismissal motion test:(c) The Public Interest Hurdle – s. 137.1(4)(b)
[32] Having concluded that 40 Days met its onus with respect to some of the alleged torts, the motion judge had to address the public interest question: whether the harm suffered by 40 Days as a result of Ms. Dietrich’s expression is sufficiently serious that the public interest in permitting 40 Days to try and hold Ms. Dietrich and others responsible outweighs the public interest in protecting the expression made by Ms. Dietrich.
[33] The motion judge accepted that there was credible evidence that 40 Days had suffered some harm as a result of the TikTok videos and the campaign that followed. In particular, she found there was credible evidence that the false sign‑ups caused significant disruption to 40 Days’ campaigns and that the harm was the result of the TikTok videos and the actions they encouraged.
[34] With respect to the public interest in protecting Ms. Dietrich’s expression in the TikTok videos, the motion judge found Ms. Dietrich’s expression to be of comparatively low value. The heart of her analysis is in the following two paragraphs:It is beyond argument that there is a significant public interest in the issues of reproductive justice and abortion. 40 Days did not object to Ms. Dietrich’s statements about these issues or her position on the appropriateness of anti-abortion groups protesting outside of abortion facilities. The primary purpose of 40 Days commencing its action does not appear to be to silence Ms. Dietrich or the other Defendants on their pro-choice views. Rather, the main motivation of 40 Days appears to be to protect its ability to organize its prayer vigils without undue disruption, to carry on its organizational activities without undue harassment, and to protect its reputation. 40 Days identified particular videos that it alleges encouraged online campaigns against it and identified specific statements that it asserts defamed it. The weighing exercise involves a consideration of whether those expressions deserve protection.
While Ms. Dietrich’s motivation for expressing herself through the impugned TikTok videos may have started out as being part of the debate on whether anti-abortion protesting should be permitted near hospitals providing abortion services, some of her efforts appear to have subsequently become more focussed on actively disrupting and impeding 40 Days in its anti-abortion activities. I do not find that there is significant public interest in protecting that kind of expression. [35] The motion judge concluded that the action was brought for a bona fide purpose and the harm suffered by 40 Days was sufficiently serious that the public interest in allowing 40 Days to vindicate its legal rights outweighed the public interest in protecting the expression. The proceeding could thus proceed on the causes of action specified.
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[61] The final step in the s. 137.1 analysis is the determination of whether the harm likely to have been suffered by 40 Days as a result of Ms. Dietrich’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
[62] This final weighing is the crux of the analysis under s. 137.1: Pointes, at para. 18. It is well established that even technically meritorious claims may be dismissed at this stage if the public interest in protecting the expression that gives rise to the proceeding outweighs the public interest in allowing the proceeding to continue: Pointes, at para. 62; The Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 381, leave to appeal refused, [2023] S.C.C.A. No. 337. This weighing exercise is guided by “proportionality as the paramount consideration in determining whether a lawsuit should be dismissed” and is meant to provide motion judges with a “robust backstop to protect freedom of expression”: Pointes, at paras. 53 and 63.
[63] Ms. Dietrich argues that what is really going on in this litigation is that a well‑funded adversary is using litigation to silence a young graduate student who successfully used TikTok to counter-protest its activities. She argues that this is the type of scenario that s. 137.1 is intended to prevent, and, in concluding otherwise, the motion judge’s weighing analysis suffered from several errors, entitling this court to conduct the analysis afresh. In particular, the motion judge is said to have erred: (1) in her assessment of the harm suffered by 40 Days; (2) in her assessment of the value of Ms. Dietrich’s expression; and (3) in the conclusion that the former outweighed the latter.
[64] In commencing this analysis, it is important to keep in mind again that public interest weighing is a task assigned to the motion judge and, absent reviewable error, it is not the place of this court to reweigh: Bent, at para. 77.
(i) The public interest in allowing the action to continue – the harm to 40 Days
[65] The first component of the public interest weighing exercise is to assess the public interest in allowing the action to continue. That is, the public interest in allowing an aggrieved party who has established a prima facie case that its legal rights have been infringed to vindicate those rights. One aspect of this analysis is assessing, on a very preliminary basis, the nature and extent of the harm suffered.
[66] As the Supreme Court noted in Neufeld v. Hansman, 2023 SCC 14, 481 D.L.R. (4th) 218: “to succeed on the weighing exercise, a plaintiff must provide evidence that enables the judge ‘to draw an inference of likelihood’ of harm of a magnitude sufficient to outweigh the public interest in protecting the defendant’s expression…. Presumed general damages are insufficient for this purpose, as are bare assertions of harm”: at para. 67. However, “no definitive determination of harm or causation is required”: Pointes, at para. 71. Importantly as well, “there is no threshold requirement for the harm to be sufficiently worthy of consideration… the magnitude of the harm simply adds weight to one side of the weighing exercise”: Pointes, at para. 70.
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[71] Unlike the threshold analysis, where the question was simply whether the expression was related to a matter of public interest, at this stage it is necessary to evaluate the expression’s quality and the motivation behind it: Pointes, at para. 74. In her factum, supplementary factum, and in oral argument, Ms. Dietrich offered various formulations of the errors the motion judge is said to have made concerning the value of her expression. The core of all of these submissions is that the motion judge did not fully understand the context in which the expression was made and so she failed to appreciate the social value of Ms. Dietrich’s TikTok videos. To rightly value her expression, the motion judge needed to understand the negative impact of 40 Days’ vigils and the role the TikTok videos played in protecting others from harm. Ms. Dietrich relies on Neufeld, which held that the public interest in counter-speech is high because it facilitates the “open exchange of ideas” thereby “unlocking the value of free expression”: at para. 81.
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[78] The appellant further argues that the motion judge erred in reasoning that Ms. Dietrich’s expression was of low value because it disrupted 40 Days’ operations. She argues that protest can be “inherently or deliberately disruptive, but this does not diminish its value or its Charter protection.” Additionally, she argues that 40 Days’ vigils are similarly disruptive and yet the motion judge failed to draw the same conclusion concerning 40 Days’ expression. The motion judge, she argues, had “no reason to protect 40 Days’ disruptive expression while finding [Ms. Dietrich’s] disruptive counter-speech malicious, harmful, and unworthy of protection.”
[79] There are several problems with this argument. First, with respect to the claim that Ms. Dietrich’s expression is Charter protected, it is true, but the argument is not sufficiently developed to assist the appellant. There is of course no government action at issue in this litigation, and appropriately there are no claims made about the violation of anyone’s Charter rights. The claim instead is that the commitment to freedom of expression underlying s. 2(b) of the Charter is also what motivated s. 137.1 and is relevant to its application: Pointes, at para. 77. It must be remembered, however, that just as s. 2(b) is qualified by s. 1 of the Charter, when appealing to Charter values an argument is needed to explain why any particular Charter value ought to take priority over others, including those generated from the Charter’s limitation clause: Pointes, at para. 76; McKitty v. Hayani, 2019 ONCA 805, 439 D.L.R. (4th) 504, at paras. 87-99.
[80] Second, the submission overlooks a distinction between ends and means in the motion judge’s reasoning. The motion judge did not presume that disruption, conceptually, is inherently positive or negative, lawful or unlawful. Everything depends on what is being disrupted, how, by whom, and whether anyone is subject to a legal duty not to do the act complained of.
[81] In this case, the motion judge found not just that Ms. Dietrich’s expressions led to disruption, but that there were grounds to believe that the form of disruption was tortious. As noted above, there was no error in this determination.
[82] The appellant vehemently disagrees with 40 Days’ message, but that does not render it low-value expression. The Supreme Court cautioned in Pointes that “judges should be wary of the inquiry descending into a moralistic taste test”, and instead instructed that the evaluation of the expression under s. 137.1(4)(b) should be guided by principles at the core of freedom of expression and other principles that underlie a free and democratic society: at paras. 76-77. This instruction should not be read as presupposing that moral evaluation is either unreasoned or lacking objectivity. Rather, it should be taken as an admonition to judges not to be quick to enter the fray on matters of moral controversy, and instead, for the purposes of this analysis, judges should disvalue only those expressions that would undermine or corrupt the core principles underlying the freedom of expression. This core has been identified as including “the search for truth, participation in political decision making, and diversity in forms of self‑fulfilment and human flourishing”: Pointes, at para. 77, citing R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 182 and Thomson Newspapers Co. v. Canada (Attorney General), 1998 CanLII 829 (SCC), [1998] 1 S.C.R. 877, at para. 24. Expressions and actions based on good faith convictions about human flourishing are not of lesser value simply because many people – even most people – believe they are wrong.
[83] Ms. Dietrich argues that her expression is an appropriate form of counter‑speech that is meant to respond to 40 Days’ activities and vigils, which she sees as harmful to a vulnerable group, namely women seeking abortions. In making this argument, she relies on the Supreme Court’s decision in Neufeld, which had not yet been released at the time the motion judge released her decision. However, the circumstances in Neufeld are significantly different than in this case. Unlike in Neufeld, Ms. Dietrich did not simply express strong disagreement with 40 Days’ activities and vigils. Rather, the motion judge found that there was reason to believe that the videos actively encouraged her viewers to disrupt 40 Days’ activities.
[84] The motion judge found that there was comparatively low value in the expression grounding the conspiracy claim because there was reason to believe it was the means by which she sought the assistance of others in carrying out a plan to impair the operations of 40 Days. Expression of this nature is not a matter of countering one argument with another. It is instead an attempt to prevent others from speaking. If the core of expression is in advancing reasons for action or belief, expression intended to prevent others from speaking is at the very margins.
[85] Had the videos that formed the basis for 40 Days’ claim been limited to the defamation videos, namely videos #4, 5, 6, 9, and 11, the weighing of the value of her expression may well have been different. However, Ms. Dietrich’s expression was not limited to her views on abortion and on 40 Days’ activities and strategies. Several of her videos encouraged others to interfere with 40 Days’ activities and vigils. This is qualitatively different from counter-speech.
[86] 40 Days did not take issue with Ms. Dietrich’s pro-choice expression or her stance against abortion protests at hospitals – it only raised concerns with the obstruction of its own operations. Indeed, the motion judge found that:The primary purpose of 40 Days commencing its action does not appear to be to silence Ms. Dietrich or the other Defendants on their pro-choice views. Rather, the main motivation of 40 Days appears to be to protect its ability to organize its prayer vigils without undue disruption, to carry on its organizational activities without undue harassment, and to protect its reputation. This was a factual finding that is owed deference.
[87] A further argument advanced by Ms. Dietrich is that because her expression is aligned with the “Charter protected right to choose to have an abortion” it is therefore a valuable counter to the threat to Charter rights posed by 40 Days’ own expression. She argues that her expression should be valued for its defence of the constitutional rights of others as against those who would impede the exercise of those rights.
[88] The invocation of the Charter in this context cannot do the work Ms. Dietrich requires because, again, her speech does more than express an opinion about abortion or 40 Days’ activities and strategies. As found by the motion judge, it seeks to interfere with 40 Days’ ability to express its views and carry out its activities.
[89] Even assuming Ms. Dietrich’s interpretation of the Charter to be uncontroversial, it would not follow that expression premised on a different interpretation of the Charter would inherently be of lesser value. A free and democratic society is one that is committed to permitting everyone to speak what they understand to be the truth about the most profound questions of being and flourishing, and to advocate for laws and policies that reflect this.
[90] Finally, and as noted above, the motion judge found as a fact that the impugned expressions were not focused on the broader debate over the propriety of anti-abortion protests. Rather, they were “focussed on actively disrupting and impeding 40 Days in its anti-abortion activities.” Accordingly, the motion judge did not commit any reviewable error in concluding that Ms. Dietrich’s expression was of comparatively low value.
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(iii) Overall weighing – what is really going on?
[92] It is important to remember that the purpose of s. 137.1 is to weed out strategic and abusive proceedings that have been initiated to silence defendants, preventing them from speaking out on matters of public interest. It aims to encourage and maintain a strong public culture of free expression. The foregoing steps in the analysis are intended to put the motion judge in a position to understand and evaluate the expression involved in the action, and determine whether the plaintiff, who has likely suffered some damage as a result of the defendant’s actions, ought to be permitted to hold the defendant to account for those actions. Or, whether the plaintiff is using the litigation not for a bona fide purpose of vindicating any actual loss but in order to silence the defendant for a collateral purpose.
[93] What is required in the final weighing, as this court pointed out in Mondal, at paras. 68-70, is not a literal weighing of harms. Weighing and balancing are metaphors for a structured evaluation of competing interests. The “weighing” is a matter of reasoning towards a conclusion about whether the litigation is being genuinely pursued to remedy a legal wrong.
[94] The motion judge found that 40 Days had met its onus of establishing grounds to believe it had suffered harm as a result of Ms. Dietrich’s actions. She found reasons to believe that at least some of Ms. Dietrich’s expressions, particularly those that were invitations to others to harass and obstruct 40 Days, were malicious and of low value. She found that 40 Days had suffered damages as a result of these expressions and that these damages were sufficiently serious to outweigh the low value of Ms. Dietrich’s impugned expressions. She did not accept that 40 Days was pursuing the litigation for abusive reasons. Accordingly, she concluded that the motion should be dismissed.
[95] We are not persuaded that the motion judge made any reviewable error in this analysis. At root, the expressions did not involve an effort to counter speech with speech. Instead, Ms. Dietrich is alleged to have led a campaign to prevent 40 Days from organizing and expressing its views. This is not the type of expression s. 137.1 of the CJA is meant to protect. These issues should go to trial on a full record, after which the court below will decide whether 40 Days has made out its claims against Ms. Dietrich.
[96] In addition, although there is a clear disparity in resources between the parties – and in some contexts that may be an indicium of an abusive proceeding – this does not lead inevitably to the conclusion that a proceeding is abusive or strategic litigation designed to interfere with freedom of expression. It is only one factor to consider in the weighing mandated by s. 137.1. . Marcellin v. London (Police Services Board)
In Marcellin v. London (Police Services Board) (Ont CA, 2024) the Ontario Court of Appeal allowed a SLAPP appeal, here focussing on the harm-expression balancing [137.1(4)(b)]:(ii) Weighing the Competing Interests under Section 137.1(4)(b)
[84] Section 137.1(4)(b) required Mr. Marcellin, as the respondent to the anti-SLAPP motion, to satisfy the motion judge that, due to the harm he had suffered or was likely to suffer as a result of the impugned expressions of the respondents, the public interest in allowing the Action to continue outweighed its deleterious effects on expression and public participation: Hansman, at para. 59; Pointes Protection, at para. 82.
[85] The weighing exercise under s. 137.1(4)(b) is the “crux” or “core” of the s. 137.1 analysis. As Côté J. explained in Pointes Protection, at para. 81:[T]he 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. Section 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.] ....
[89] The relevant principles on the issue of harm are well-established: see Park Lawn, at para. 46; Pointes Protection, at paras. 68-72; Bent, at paras. 142-62; and Hansman, at paras. 67-68. These principles can be briefly summarized as follows:. 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, although there must be evidence that the harm is of a magnitude sufficient to outweigh the public interest in protecting the impugned expressions;
. Reputational harm is also relevant to the harm inquiry even if at this stage it is not quantifiable. Reputation is one of the most valuable assets a person or a business can possess;
. General damages are presumed in defamation actions. This alone is sufficient to constitute harm, although it is not sufficient to establish that the harm is serious;
. A fully developed damages brief is not required; and
. 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. This inquiry is undertaken by the motion judge on a case-by-case basis. ....
[94] Statements alleging serious misconduct, including criminal actions, are obviously so likely to cause serious harm to a person’s reputation that the likelihood of harm being caused can be inferred: 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; Levant v. DeMelle, 2022 ONCA 79, 79 C.P.C. (8th) 437, at para. 68, leave to appeal refused, [2022] S.C.C.A. No. 88. See also Hobbs v. Warner, 2021 BCCA 290, 56 B.C.L.R. (6th) 287, at para. 84, leave to appeal refused, [2021] S.C.C.A. No. 413. While the motion judge acknowledged that even an implication of criminal conduct can be extremely damaging to one’s reputation, he concluded, unjustifiably in my view, that Mr. Marcellin’s harm was “minimal”.
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[96] Reputational harm is “eminently relevant to the harm inquiry” under s. 137.1(4)(b). Indeed, a person’s reputation is one of the most valuable assets a person can possess: Bent, at para. 146. Nominal damages are awarded where a court determines that defamation occurred but there is no evidence of harm. ....
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[99] At the public interest hurdle under s. 137.1(4)(b), the plaintiff need not prove harm or causation; the court is tasked at this stage with drawing inferences of likelihood in respect of the existence of harm, its magnitude, and the relevant causal link: Mondal, at para. 30, citing Pointes Protection, at paras. 70-71. “[T]here is no threshold requirement for the harm to be sufficiently worthy of consideration…. [T]he magnitude of the harm simply adds weight to one side of the weighing exercise”: Pointes Protection, at para. 70. I am satisfied, based on the record in this motion, that Mr. Marcellin has established a likelihood of harm caused by the respondents’ actions that is of a sufficient magnitude to justify the continuation of his Action. As such, his interest in pursuing the Action is significant.
(b) The Public Interest in Protecting the Respondents’ Expressions
[100] On the other side of the weighing exercise is the public interest in protecting the respondents’ expressions. In considering the value of the expressions under s. 137.4(b), the motion judge concluded that the public has a “very strong interest in protecting the victims of intimate partner violence”, which includes promoting expression and debate on the topic of sexual and domestic violence and abuse and not discouraging victims from reporting such violence and abuse.
[101] The term “public interest” is used differently in s. 137.1(4)(b) than in s. 137.1(3). Under s. 137.1(4)(b), “not just any matter of public interest will be relevant. Instead, the quality of the expression, and the motivation behind it, are relevant here”: Pointes Protection, at para. 74 (emphasis in original). It is relevant at this stage whether the expression “helps or hampers the public interest”: Pointes Protection, at para. 74. Under s. 134.1(4)(b) the court must undertake a “qualitative consideration of the public interest in the [subject] expression”: Thorman v. McGraw, 2022 ONCA 851, 476 D.L.R. (4th) 577, at para. 30 (emphasis added).
[102] As the Supreme Court noted in Hansman, not all expression is created equal, and the level of protection to be afforded to any particular expression can vary according to the quality of the expression, its subject matter, the motivation behind it and the form through which it was expressed: at para. 79. Since defamatory statements and personal attacks are “very tenuously” related to the core values which underlie s. 2(b) of the Charter, “there will be less of a public interest in protecting a statement that contains ‘gratuitous personal attacks’ and the ‘motivation behind’ the expression will be relevant to the inquiry”: Pointes Protection, at paras. 74-75; Bent, at para. 163.
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[107] Malice is relevant to the weighing under s. 137.1(4)(b): Pointes Protection, at para. 75. Failure to consider evidence of malice at the weighing stage is a reversible error. In Hobbs, the British Columbia Court of Appeal stated that “[h]aving found that a trier of fact could conclude that [the respondent] was actuated by malice when he sent the police tip and later communicated with the Commission and RCMP, the judge did not account for that important consideration in the weighing exercise”, and that “[h]er failure to do so was an error in principle”.
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(c) Weighing the Interests
[111] Conducting the weighing under s. 137.1(4)(b) is an “open-ended” exercise that requires the court “to scrutinize what is really going on in the particular case” and to consider all relevant factors: Pointes Protection, at paras. 79-81. Whether the hallmarks or indicia of a classic SLAPP suit are present bears on the public interest weighing exercise under s. 137.1(4)(b), including such factors as whether the plaintiff has a history of using litigation or the threat of litigation to silence critics, a financial or power imbalance that strongly favours the plaintiff, a punitive or retributory purpose animating the action, and minimal or nominal damages suffered by the plaintiff: Pointes Protection, at para. 78. Other factors may be considered where relevant, including the importance of the expression, broader or collateral effects on other expressions on matters of public interest, and the potential chilling effect on future expression either by a party or by others: Pointes Protection, at para. 80.
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[118] On the other hand, a dismissal of the Action at this early stage would prevent Mr. Marcellin from having any recourse to remedy harm to his reputation that was caused by the respondents. As the Supreme Court stated in Pointes Protection, the anti-SLAPP provision ensures that “a plaintiff with a legitimate claim is not unduly deprived of the opportunity to vindicate that claim”: at para. 48. In my view the Action is a proportionate response by Mr. Marcellin to the respondents’ conduct. What is “really going on” here is not an improper attempt through litigation to suppress expressions by the respondents that are in the public interest; rather the Action is an attempt to remedy seemingly legitimate harm suffered as a result of the respondents’ conduct that was directed toward Mr. Marcellin and his reputation. “This is not the type of case that comes within the legislature’s contemplation of one deserving to be summarily dismissed at an early stage, nor does it come within the language of the statute requiring such a dismissal”: Bent, at para. 172.
[119] I conclude that Mr. Marcellin met his burden under s. 137.1(4)(b). I am satisfied that the harm he has suffered or is likely to suffer as a result of the respondents’ expressions is sufficiently serious that the public interest in permitting the Action to proceed outweighs the public interest in protecting those expressions.
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