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Civil Litigation - SLAPP - No Valid Defence. Gill v. Maciver
In Gill v. Maciver (Ont CA, 2024) the Court of Appeal considered (and dismissed) an appeal from a defendant-successful SLAPP s.137.1 motion, here in yet another COVID vaccination dispute - this on Twitter.
Here the court considered a 'fair comment' defence, here in a SLAPP CJA 137.1(4)(a)(ii) ['no valid defence in the proceeding'] context:[31] First, s. 137.1(4)(a)(ii) of the CJA provides that if the impugned expression giving rise to a proceeding relates to a matter of public interest, the proceeding shall be dismissed unless the plaintiff satisfies the motion judge that there are grounds to believe that the defendant has no valid defence in the proceeding.
[32] The motion judge found that the impugned tweets by Picard, Weeks and Picazo were in the nature of “fair comment” on statements made by the appellant regarding COVID-19. “Fair comment” is a well-recognized defence within the law of defamation. Therefore, the appellant, according to the motion judge, had failed to discharge her burden of showing that Picard, Weeks and Picazo had no valid defence to her defamation claim. Accordingly, her claim against them should be dismissed on the basis of s.137.1(4)(a)(ii) of the CJA.
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(1) The motion judge did not err in finding that the defence of fair comment was prima facie available to Picard, Weeks and Picazo
[46] Section 137.1(4)(a)(ii) of the CJA requires the plaintiff to satisfy the motion judge that the defendant has no valid defence in the proceeding. The motion judge found that the appellant had failed to satisfy this requirement in respect of Picard, Weeks and Picazo, because the defence of “fair comment” was prima facie available to each of them.
[47] The fair comment defence is premised on the idea that citizens must be able to openly declare their opinions on matters of public interest without fear of reprisal in the form of actions for defamation. For the fair comment defence to be successful, a defendant must prove the following: (i) the comment must be on a matter of public interest; (ii) be based on fact; (iii) be recognizable as a comment; (iv) satisfy an objective test (could any person honestly express that opinion on the approved facts?); and (v) the speaker cannot be actuated by express malice: Hansman, at para. 96. To satisfy a motion judge that a defendant has no valid defence of fair comment, the plaintiff must demonstrate that there is no prima facie basis for finding that one or more of these elements of the fair comment offence to be satisfied: Hansman, at para. 97.
[48] The appellant claims that the motion judge made two errors in her analysis of whether the “fair comment” defence was available to Picard, Weeks and Picazo. First, the motion judge failed to consider whether the comments made by these three defendants were based on “proven facts”, namely, that the statements made by the appellant were in fact untrue or, alternatively, that the statements made by Picard, Weeks and Picazo were true. Second, the motion judge failed to consider whether Picard, Weeks and/or Picazo were motivated by malice.
[49] There is no merit to either of these objections.
[50] As the Supreme Court of Canada made plain in Hansman at paras. 99-100, the requirement that the defendant’s statements be “based on fact” does not mean that the defendant must prove that the statements they made were true. If this were so, it would collapse the distinction between the defences of “fair comment” and justification. All that is necessary to satisfy the “based on fact” element of the fair comment defence is that the defendant identify the factual foundation upon which the impugned statement is based, so that the reader can “make up their own minds as to its merits”: Hansman, at para. 99.
[51] In this case, Picard, Weeks and Picazo all expressly identified the specific statements of the appellant with which they took issue, and their basis for making those statements. Nothing further was required in order to satisfy the “based on fact” requirement of the fair comment defence.
[52] Nor has the appellant advanced any basis for finding that the motion judge erred in finding that Picard, Weeks or Picazo were not motivated by malice. The motion judge made clear findings, based on the record, that all three of these defendants were motivated by concerns that the appellant’s public statements had the potential to mislead or misinform the public, thereby creating a potential risk to public health. Not only were these findings open to the motion judge, but the appellant has also failed to adduce any credible evidence to the contrary.
[53] In my view, the motion judge did not err in finding that the defence of fair comment was prima facie available to Picard, Weeks and Picazo. This in itself is fatal to the appellant’s claims against these three defendants. However, because the “fair comment” defence was not available to Maciver, I will proceed to consider additional grounds relied upon by the motion judge in dismissing the claim against all four Remaining Defendants . Volpe v. Wong-Tam
In Volpe v. Wong-Tam (Ont CA, 2023) the Court of Appeal usefully lists defamation defences:[54] All that remains, then, is to consider the defences advanced with respect to the defamation action: justification, fair comment, qualified privilege, statutory immunity, and responsible communication. ... . 2110120 Ontario Inc. v. Buttar
In 2110120 Ontario Inc. v. Buttar (Ont CA, 2023) the Court of Appeal considers the plaintiff's SLAPP burden of 'no valid defence' [under CJA 137.1(4)(a)(ii)]:[32] ... Turning to s. 137.1(4), I am however satisfied that the respondents have met their burden of establishing that: (a) there are grounds to believe that (i) the Action has substantial merit and (ii) the appellants have no valid defence in the Action; and (b) that the harm they are likely to suffer as a result of the expression is sufficiently serious that the public interest in permitting the Action to continue outweighs the public interest in protecting the expression.
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(ii) Section 137.1(4)(a)(ii) – No valid defence
[59] Turning to the question under s. 137.1(4)(a)(ii), the initial onus is on the appellants to “put in play” their defences. It is then the onus of the respondents to demonstrate that there is reason to believe that none of the defences raised by the appellants will succeed: Pointes Protection, at para. 57; Bent, at para. 103.
[60] The initial question is therefore what, if any, defences the appellants have “put in play”. In Bent, at para. 104, the Supreme Court accepted that Ms. Bent had “put in play” the defences of justification and qualified privilege through her statement of defence. Where, as here, there is no statement of defence, the question is whether defences have been raised in other materials filed by the moving party. As Doherty J.A. wrote in this court’s decision in Pointes Protection, “bald allegations [and] unparticularized defences are not the stuff from which ‘grounds to believe’ are formulated” and accordingly, the material filed on the motion should be sufficiently detailed to allow the court to “clearly identify the legal and factual components of the defences advanced”: 2018 ONCA 685, 142 O.R. (3d) 161, at paras. 82-83. See also Pointes Protection, at para. 52.
[61] Although he was not specifically considering s. 137.1(4), the motion judge expressed the view that the appellants had put nothing forward in respect of a defence. In other words, he would have found that the appellants had not met their initial burden to put defences in play.
[62] There has been little judicial consideration of the evidentiary burden on a moving party to put a defence “in play”. In both their notice of motion and in their factum filed on the motion, the appellants advanced three defences that they say are supported by the law and the record: (1) justification – that the impugned statements were true at the time they were made; (2) fair comment – that the impugned statements were honestly held opinion; and (3) responsible communication on a matter of public interest – that the impugned statements were communications on a matter of public interest where they had taken reasonable care to ensure the accuracy of what was said. For the purposes of this appeal, I accept that the appellants have “put in play” the three defences that were relied on at first instance and in the appeal.
[63] Whether and to what extent the defences are supported by the evidence and are technically valid is the next issue to consider. Once a defence has been “put in play”, the question is whether the record that was before the motion judge – that is, the entire record, and not just the evidence put forward by the moving parties – supports or refutes the particular defence. Again, the standard is whether there is reason to believe that the moving parties will have no valid defence. To satisfy this burden, the responding party must show that the defences raised “are not legally tenable or supported by evidence that is reasonably capable of belief such that they can be said to have no real prospect of success”: Hansman, at para. 94; Pointes Protection, at para. 59.
[64] I will deal in turn with the three defences, to assess whether, on this preliminary record, there is reason to believe the defences will not succeed.
(1) The defence of justification
[65] Once a plaintiff makes a prima facie showing of defamation, the words complained of are presumed to be false. To succeed in the defence of justification, the defendant must establish the substantial truth of the "sting", or main thrust, of the defamatory words. “The sting of the words includes the expressed defamatory meaning of the words and any implication that is found to have been a correct defamatory meaning of them”: Peter A. Downard, The Law of Libel in Canada, 4th ed. (Markham: LexisNexis Canada, 2018), at paras. 6.2-6.3; CUPW, at para. 23; Bent, at para. 107; Raymond E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, loose-leaf, 2nd ed., (Toronto: Thomson Reuters, 2017), at paras. 10-1, 10-47, 10-50, and 10-59. See also the Libel and Slander Act, R.S.O. 1990, c. L.12, s. 22.
[66] In assessing this defence, as well as the other defences the appellants have raised, it is important to keep in mind what was said that was allegedly defamatory, together with what reasonably would have been understood by the audience for the impugned statements. The defamation that is alleged in the Action is in relation to the words “thief alert”, “stolen” and “pay your drivers now” (in both English and Punjabi).
[67] The appellants contend that the impugned defamatory words were true because at the time they made their statements, an order existed for the respondents to pay the appellants a significant amount of money. They point to the fact that two of the appellants had received orders to pay, and decisions that they were employees and not independent contractors. In other words, they say that the “sting” of the impugned communication is properly understood to be that Cargo County was withholding money from them for work they had performed as drivers, and at the time they made their statements, that was, at its core, the true state of affairs. This is an argument that the impugned statements should not be taken literally, and that they should be understood in the context of the legitimate wage dispute the appellants were involved in with Cargo County.
[68] Whether the argument that the statements were true could prevail is informed by the interpretation given to the statements. Determining the defamatory meaning of the words complained of requires the court to ask: what would a reasonable member of the public who saw and heard the impugned statements at the time they were made understand them to mean? A statement that is alleged to be defamatory must be considered in the full context in which it is made, that is, in the context that was available and reasonably known to the intended and actual audience for the statement: WIC Radio v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420 (sub nom. Simpson v. Mair), at para. 56. The meaning of the impugned statements is determined on the basis of the record before the court and the court is not required to accept the interpretation proposed by the appellants: Catalyst, at para. 50. That said, in interpreting the words, the court “is to avoid putting the worst possible meaning” on them: WIC Radio, at para. 56.
[69] Words, even those that seem to impute a criminal offence, may be open to two meanings as different shades of meaning derive their colour from context: Brown on Defamation, at paras. 8-11. Here, the setting and background to the impugned words are the words on the banners, placards and pamphlets as well as the chanting at a protest over labour practices in a particular industry. Viewing the wider context, the ordinary listener might have understood the words “wage thief” to refer to wages wrongfully withheld. However, it is also reasonable to believe, at this stage of the proceeding, that the ordinary listener or reader could have interpreted the impugned statements quite literally: that Randeep Sandhu had committed a criminal or illegal act.
[70] Moreover, without taking too deep a dive into the record, there is evidence that the appellants did not communicate the context of the dispute that they were involved in, in particular that the CLC Proceedings were still underway, and that Cargo County had appealed the two orders to pay and had paid the full amount as a condition of its appeal. A reasonable trier of fact could conclude that the impugned words meant that either Cargo County did not owe any amounts to the appellants at that time, or it was withholding payment for good reason.
[71] To be clear, the meaning of the expression is something the court will need to determine at trial in assessing the defamation claim. However, at this stage, based on the defamatory meaning that could reasonably be given to the impugned expression, I am satisfied that there is a basis in the record and the law to support a finding that the statements that the respondents were “wage thieves” or had “stolen” the appellants wages were not substantially true. Accordingly, the defence of justification cannot be considered to weigh more in favour of the appellants such that it may be considered “valid” under s. 137.1(4)(a)(ii).
(2) The defences of fair comment and responsible communication on a matter of public interest
[72] The other two defences raised by the appellant, for the purpose of this appeal, can be addressed briefly. Again, the question at this stage is only whether there is reason to believe that the defences will not succeed. Although the elements of the defences are distinct, both are defeated by malice: Blair v. Ford, 2021 ONCA 841, at para. 45, Torstar, at para. 125. Malice has both subjective and objective aspects: WIC Radio, at para. 28. It may be established by reckless disregard for, or indifference to, the truth, spite or ill-will, or any indirect or ulterior motive: CUPW, at para. 31, citing Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at p. 1189; Bent, at para. 136. In CUPW, it was sufficient that the evidence might support a finding of malice, based on the presence of an ulterior motive or recklessness about the truth of underlying facts, or based on an inference from the appellants’ conduct: at para. 32.
[73] The appellants submit that there is no evidence of malice in this case. I disagree. While it is premature to determine the question conclusively, even at this preliminary stage, there is evidence to support such a finding based on the presence of an ulterior motive: to intimidate the respondents into paying their claims. There is also evidence of recklessness about the truth of the underlying facts, namely that the orders were under appeal and subject to an ongoing legal process. A key piece of evidence is NSN’s letter of September 25, 2021, that preceded and threatened the October 2 rally, which was addressed to Randeep Sandhu and stated, in part:You have not paid any of these drivers a cent of what they are owed. Your behaviour is outrageous and shameful. No worker should have to spend extra time and money filing legal claims just to receive their hard-earned pay. We demand that you pay these drivers the above amounts by October 1, 2021. If you refuse, members of the NSN will organize public protests to demand all these drivers be paid. We will expose you and Cargo County Group to other truck drivers, to the Panjabi community in Peel and to the broader public across Ontario. We will also speak publicly about you and your company at our October 2 rally and share details of the drivers’ stories with all local media in attendance. [Emphasis in original.] [74] Further, NSN’s representative confirmed that NSN knew that the appellants were involved in a legal process with Cargo County but made no inquiries to determine whether any monies were in fact owed at the time of the impugned conduct. The thrust of her evidence was that, irrespective of the status of the legal process and the true facts, NSN intended to bring pressure to bear on Cargo County using the tactics they had employed in other cases, which included calling its principal a “wage thief”.
[75] Without going into the evidence in depth, there is sufficient evidence that could support a finding of malice based on the inflammatory tone and invocation of criminality present in the impugned remarks, the evidence of an ulterior motive to embarrass, shame and intimidate the respondents into paying the appellants’ claims, and a recklessness or indifference to the truth of what was stated.
[76] Accordingly, there is reason to believe that the defences of fair comment and responsible communication on a matter of public interest will not succeed. . Mondal v. Kirkconnell
In Mondal v. Kirkconnell (Ont CA, 2023) the Court of Appeal considered appeals from two SLAPP motions, both of which resulted in the dismissal of the actions.
In this quote the court considers the relationship between the 'merits' and the 'no valid defence' prongs of the SLAPP test, and the role of the "grounds to believe" qualifier [at CJA 137.1(4)(a)], that applies to both prongs::[44] As the Supreme Court made clear in Pointes, at paras. 46, 59, the “substantial merit” and “no valid defence” requirements are parts of an overall assessment of the prospect of success of the underlying claim. The bar cannot be set too high at the merits-based hurdle, otherwise the weighing stage will never be reached. This, the Supreme Court emphasized, “cannot possibly be what the legislature contemplated given the legislative history and intent behind s. 137.1”: at para. 63. Proportionality is the “paramount consideration” in determining whether an action should be dismissed.
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(iii) The appellant’s burden on the s. 137.1 motion
[50] As noted above, the bar cannot be set too high at the merits-based hurdle. The plaintiff is not required to establish that the defendant has no valid defence to an action. Section 137.1 requires only that the plaintiff establish that there are grounds to believe that the defendant has no valid defence. This is consistent with the early stage of proceedings in which the motion is brought.
[51] I emphasize the “grounds to believe” modifier lest the burden on the plaintiff be overstated. All that is required to satisfy s. 137.1(4)(a)(ii) is a determination that there is a basis in the record and the law for concluding that the defences asserted will not succeed: Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 103; Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 26, 455 D.L.R. (4th) 525, at paras. 66-68, leave to appeal refused, [2021] S.C.C.A. No. 87. In this case, the appellant was required to establish grounds to believe that the respondents’ pleaded defence – fair comment – could not succeed. He could do so either by establishing grounds to believe that they could not establish fair comment, or grounds to believe that a fair comment defence otherwise available to them would be defeated by malice: see e.g., Canadian Union of Postal Workers v. B’nai Brith Canada, 2021 ONCA 529, 460 D.L.R. (4th) 245, at paras. 31-34.
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[56] .... The appellant was required to establish only, on a standard less than the balance of probabilities, grounds to believe the respondents had no valid defence. In other words, “a basis in the record and the law – taking into account the stage of litigation at which a s. 137.1 motion is brought – for finding that … there is no valid defence”: Pointes, at paras. 39-40. He was not required to establish that the respondents’ fair comment defence would inevitably fail. As this court put the matter in Lascaris v. B’nai Brith Canada, 2019 ONCA 163, 144 O.R. (3d) 211, at para. 33, leave to appeal refused, [2019] S.C.C.A. No. 147:The burden on the appellant under s. 137.1(4)(a)(ii) is not to show that a given defence has no hope of success. To approach s. 137.1(4)(a)(ii) in that fashion risks turning a motion under s. 137.1 into a summary judgment motion. . Boyer v. Callidus Capital Corporation
In Boyer v. Callidus Capital Corporation (Ont CA, 2023) the Court of Appeal considered the 'no valid defence' element of a SLAPP motion:The moving party has no valid defence burden: s. 137.1(4)(a)(ii)
[46] In Pointes, Côté J. explained at para 56 and 57:s. 137.1(4)(a)(ii) operates as a de facto burden-shifting provision in itself, under which the moving party (i.e. defendant) must first put in play the defences it intends to present and the responding party (i.e. plaintiff) must then show that there are grounds to believe that those defences are not valid. [47] In other words, once the moving party has put a defence in play, the onus is back on the responding party (i.e. plaintiff) to demonstrate that there are grounds to believe that there is “no valid defence”. . 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)(a)(i) 'substantial merits' issue:[11] The motion judge situated the impugned passage within the context of the petition as a whole. It was open to him to do so. Moreover, he properly considered the pleadings and ultimately determined that the action did not have a real prospect of success. 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 does contemplate an examination of a statement of claim as part of the merits analysis. In addition, an action may not be frivolous, and may even be technically valid, but still not pass the requisite threshold of substantial merit: Pointes Protection, at para. 47. As Côté J. explained, the discretion is placed on the motion judge, not a “reasonable trier”: Pointes Protection, at para. 41. Simply put, the motion judge is entitled to significant deference in his assessment of the merit of the case. We would not interfere with the motion judge’s determination that the claim did not have a real prospect of success. . Blair v. Ford
In Blair v. Ford (Ont CA, 2021) the Court of Appeal considered whether "the moving party has no valid defence in the proceeding" [RCP 137.1(4)(a)(ii)] in a SLAPP dismissal motion:[41] Blair had the burden to show that the defence put forward by Ford had “no real prospect of success”: see Pointes Protection, at paras. 50, 60. The motion judge described a “real prospect of success” as meaning “a solid prospect of success” and “less than a “likelihood of success” but more than merely “some chance of success” or even “a reasonable prospect of success.”
[42] The appellant submits that this is the wrong test. He says it raised the burden on him and that he should have only been required to prove that a reasonable trier of fact could reject the defences advanced by Ford. The appellant relied on Bondfield Construction Company Limited v. The Globe and Mail Inc., 2019 ONCA 166, 144 O.R. (3d) 291 to support this argument.
[43] The test established by this court in Bondfield was refined in Pointes Protection. The perspective to apply is not that of a reasonable trier at a subsequent trial, but rather the subjective perspective of the motion judge. Pointes Protection clarifies the following at para. 41:Importantly, the assessment under s. 137.1(4)(a) must be made from the motion judge’s perspective. With respect, I am of the view that the Court of Appeal for Ontario incorrectly removed the motion judge’s assessment of the evidence from the equation in favour of a theoretical assessment by a “reasonable trier” … The clear wording of s. 137.1(4) requires “the judge” hearing the motion to determine if there exist “grounds to believe”. Making the application of the standard depend on a “reasonable trier” improperly excludes the express discretion and authority conferred on the motion judge by the text of the provision. The test is thus a subjective one, as it depends on the motion judge’s determination. [44] I do not agree that the motion judge used the wrong test or raised the bar for Blair with respect to “valid defence.” While the motion judge did not track the wording in Pointes Protection, his analysis makes it clear that he found that Blair did not demonstrate that Ford’s defence of fair comment had no real prospect of success. . Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation (II)
In Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation (I) (Ont CA, 2021) the Court of Appeal considers the SLAPP issue of 'no valid defence' that a plaintiff may advance to further a claim even though it is based on expression in the public interest [paras 50-74].
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