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Civil Litigation Dicta - SLAPP - Harm-Expression Balancing (4)

. 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”.


[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. ....


[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.


[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”.


(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.


[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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Last modified: 15-06-24
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