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SLAPP - Harm-Expression Balancing Exception [CJA s.137.1(4)(b)]

. 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 'harm-expression balancing' under CJA 137.1(4)(b):
[75] To satisfy the public interest factor at s. 137.1(4)(b) of the CJA, Subway must establish that “the harm likely to be or have been suffered by [Subway] as a result of the [CBC’s] expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.”

....

(b) The Objectives of s. 137.1(4)(b): Weighing the Public Interest

[80] Section 137.1(4)(b) is the core of the s. 137.1 analysis. The stated objective is to quickly identify and deal with strategic lawsuits, and ensure abusive litigation is stopped but legitimate action can continue: Pointes, at paras. 61-62.

[81] Summary procedures such as this, are intended to avoid the need for a trial where it is clearly unnecessary to achieve a fair result. They are not meant to duplicate a trial at the outset of the proceeding.

[82] They allow 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”: Pointes, at para. 81 and Bent, at para. 139.

(c) Assessing the Harm Suffered

[83] In assessing the harm likely to be suffered by a plaintiff, both monetary and non-monetary harm are relevant: Pointes, at para. 69.

[84] The court in Pointes cited with approval the words of then Attorney General of Ontario, Madeleine Meilleur, in discussions preceding the enactment of the legislation that “reputation is one of the most valuable assets a person or a business can possess” (Legislative Assembly of Ontario (2014), at p. 1971).

[85] Neither reputational harm nor monetary harm is more important than the other. Nor is harm synonymous with the damages alleged. The text of the provision does not depend on a particular kind of harm, but expressly refers only to harm in general: Pointes, at paras. 11-13.

[86] A plaintiff must simply “provide evidence for the motion judge to draw an inference of likelihood in respect of the existence of the harm and the relevant causal link”: Pointes, at para. 71.

(d) Assessing the Public Interest

[87] In weighing the public interest in allowing a proceeding to continue, certain factors may be relevant, including a history of attempts to silence critics, financial power imbalance, punitive purpose, and minimal damages suffered. The potential chilling effect on future expression and the defendant’s history of advocacy in the public interest may also be relevant: Pointes, at paras. 79 and 80.
. Nanda v. McEwan

In Nanda v. McEwan (Ont CA, 2020) the Court of Appeal considered the CJA 137.1(4)(b) 'public interest balancing':
(c) Section 137.1(4)(b): The Public Interest Hurdle

[53] I turn to the second hurdle. Section 137.1(4)(b), set out above, calls for the balancing of the public interest in permitting a proceeding to continue against the public interest in the protection of expression on matters of public interest.

[54] At this stage, the plaintiff has a burden to establish evidence of harm, which may be in the form of damage to monetary, reputational, and/or privacy interests: Pointes, at paras. 87-88. The plaintiff must demonstrate that there was a causal connection between the defendant’s expression and the harm suffered: Pointes, at paras. 90-92. The motion judge must also assess the public interest in protecting the actual expression that is the subject of the lawsuit.

[55] In Platnick, at para. 98, Doherty J.A. suggested that, while acknowledging that s. 137.1 does not apply only to litigation that meets the criteria of a SLAPP, it may be appropriate to begin the s. 137.1(4)(b) analysis by asking, “[d]oes this claim have the hallmarks of a classic SLAPP?” These may include such matters as: a history of the plaintiff 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 plaintiff bringing the claim; and minimal or nominal damages suffered by the plaintiff: Platnick, at para. 99.

[56] This is hardly a classic SLAPP. None of the indicia identified by Doherty J.A. are present. While the respondent seeks damages of only $25,000, he has adduced some evidence of an income loss related to the loss of the election for the office of President, and the damages claimed are realistic.

[57] I agree with the motion judge’s conclusion on this issue. Having regard to the expressions at issue, the merits of the respondent’s case, and giving due regard to the public interest in public debate and expression in the context of a union election, the public interest in permitting the action to proceed must prevail.
. United Soils Management Ltd. v. Mohammed

In United Soils Management Ltd. v. Mohammed (Ont CA, 2019) the Court of Appeal considered the CJA 137.1(4)(b) 'public interest balancing':
[21] Section 137.1(4)(b) required the motion judges to dismiss the appellant’s lawsuits unless the appellant could demonstrate that the harm suffered by it, or likely to be suffered by it, as a result of the respondents’ statements was sufficiently serious that the public interest in permitting the appellant’s lawsuit to go forward outweighed the public interest in protecting the respondents’ freedom of expression. This court considered the factors relevant to the balancing process described in s. 137.1(4)(b) in Pointes, at paras. 85-98; Able Translations Ltd. v. Express International Translations Inc., 2018 ONCA 690, at paras. 37-44; and Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686, 426 D.L.R. (4th) 1, at paras. 42-52.

[22] Any monetary damages suffered by a plaintiff, or likely to be suffered by a plaintiff, as a consequence of alleged defamatory statements is a key feature in the assessment of the harm suffered or likely to be suffered by the plaintiff: Pointes, at para. 88. The appellant offered no evidence of any monetary damage suffered by it. While damages are presumed if defamation is established, there is no presumption about the nature or quantum of that damage. On this evidence, there is no reason to think that any damages awarded to the appellant would be anything more than modest, if not nominal.
. Bondfield Construction Company Limited v. The Globe and Mail Inc.

In Bondfield Construction Company Limited v. The Globe and Mail Inc. (Ont CA, 2019) the Court of Appeal considered the SLAPP harm-expression balancing provisions, after the Pointes case was released from the Ontario Court of Appeal:
IV. SHOULD THE CLAIM HAVE BEEN DISMISSED ON THE “PUBLIC INTEREST” BALANCING IN S. 137.1(4)(b)?

[20] As indicated above, the motion judge considered the application of s. 137.1(4)(b) although on his analysis it was unnecessary to do so as he had determined that Bondfield’s action must be dismissed pursuant to s. 137.1(4)(a)(ii). The motion judge found that the public interest balancing in s. 137.1(4)(b) favoured permitting Bondfield to proceed with its action. Several of the factors identified by the motion judge were subsequently acknowledged by this court in Pointes and related cases to be relevant to the balancing process in s. 137.1(4)(b): see Pointes, at paras. 85-95; Able Translations Ltd. v. Express International Translations Inc., 2018 ONCA 690, at paras. 37-44.

[21] Normally a deferential standard of review will apply to a motion judge’s analysis of the competing public interests in s. 137.1(4)(b): Pointes, at para. 97. However, given that the motion judge did not have the benefit of this court’s subsequent decisions, I will engage in a de novo balancing of the competing public interests. I come to the same conclusion as did the motion judge.

[22] In Platnick v. Bent, 2018 ONCA 687, at para. 98, this court suggested that the public interest balancing in s. 137.1(4)(b) could begin with the question “Does this claim have the hallmarks of a classic SLAPP?” This litigation has none of those hallmarks.

[23] There is no history of Bondfield using litigation or the threat of litigation to silence critics. There is no financial or other power imbalance that favours Bondfield over the Globe. There is no suggestion of any punitive or retributory purpose motivating Bondfield’s lawsuit: Platnick v. Bent, at para. 99.

[24] Nor is this a case in which Bondfield has failed to produce any evidence of loss in the form of monetary damages. To the contrary, Bondfield has produced evidence that it has lost contracts, potential construction partners, and potential funding from lenders as a result of the articles written in the Globe. These losses, if connected in whole or in part to any defamatory statements, would result in a significant damage award in favour of Bondfield.

[25] I hasten to add that the Globe has a good argument that any losses suffered by Bondfield are not causally connected to the alleged defamation but are, in fact, the result of Bondfield’s failure to abide by the rules pertaining to the bidding process and, in particular, its failure to disclose in the course of that process its business connections with Mr. Georgiou. In my view, however, the s. 137.1 motion was not the place to resolve the causal connection issue as it related to the alleged damages. For the purposes of asserting harm suffered or likely to be suffered, it was enough that Bondfield presented specific and credible evidence of potentially significant pecuniary damages flowing from the defamatory statements: Pointes, at para. 90-92. Like the motion judge, I think Bondfield made out a formidable case of significant harm suffered or likely to be suffered as a result of the articles should they be found to be defamatory.

[26] There is, however, much to be said for the public interest in protecting the Globe’s freedom of expression. The articles dealt in considerable depth with the integrity of the contract bidding process on a project that involved millions of dollars in public funds. The community clearly has a significant interest in that subject. By engaging in a lengthy and no doubt expensive investigation, the Globe was able to shine considerable public light on that process and raise legitimate concerns about the process. There is a very real public benefit to this kind of investigative reporting.

[27] Whatever may ultimately be determined about the quality of the Globe’s investigation and the fairness of the reporting, there is nothing in this record that could reasonably suggest that the Globe was motivated by anything other than a desire to inform the public about the facts the Globe’s investigation had revealed. Similarly, the Globe’s articles are devoid of deliberate falsehoods, hyperbole, gratuitous personal attacks, or other similar characteristics that would diminish the public interest in protecting the expression: Pointes, at para. 94.

[28] There are powerful arguments to be made on both sides of the public interest balancing required in s. 137.1(4)(b). In the end, I view this as a case in which Bondfield has a legitimate argument that it has been defamed and suffered significant damages as a result of the Globe articles. The Globe has legitimate arguments, both that the content is not defamatory and that it has defences to any parts that are defamatory. Unlike SLAPP suits which reek of the plaintiff’s improper motives, claims of phantom harm, and bullying tactics, this litigation smells of a genuine controversy. It should be tried on its merits.
. Levant v. Day

In Levant v Day (Ont CA, 2019) the Court of Appeal considered the SLAPP harm-expression balancing exception, after the 2020 SCC case of Pointes Protection:
(3) Is the harm suffered or likely to be suffered serious enough to outweigh the public interest in protecting the expression embodied in the tweets?

[15] The motion judge indicated that she was satisfied “that the interest in permitting the within proceeding to continue to trial outweighs the public interest in protecting the impugned expression contained in the Day [tweets]. In the circumstances of this case, there is no public interest in protecting said [tweets]”: Levant, at para. 54.

[16] Sometimes claims of defamation may exact too great a cost to the public interest in promoting and protecting freedom of expression in relation to matters of public interest: Pointes, at para. 86.

[17] As pointed out in the Anti-SLAPP Advisory Panel[2], Report to the Attorney General (Ontario: Ministry of the Attorney General, 2010), at para. 37:
If an action against expression on a matter of public interest is based on a technically valid cause of action but seeks a remedy for only insignificant harm to reputation, business or personal interests, the action’s negative impact on freedom of expression may be clearly disproportionate to any valid purpose the litigation might serve.
[18] Here, the alleged defamatory statements accused the respondent of defrauding victims of the Fort McMurray forest fires. While the harm suffered or likely to be suffered may often be measured primarily by the monetary damages suffered or likely to be suffered, the “preservation of one’s good reputation” has inherent value beyond the monetary value of the claim: Pointes, at para. 88. Here, we are told the appellant had around 11,000 followers on Twitter. There is no indication the statements were made to a private, or closed group. These were not statements made to a small group and quickly retracted. The statements attribute serious criminality to the respondent. On his discovery, the appellant accepted that donors were receiving tax receipts for their donations. He admitted that he had not made any inquiries of the government about matching donations. He also admitted that he had no information that the respondent received any personal benefit from the fundraising campaign.

[19] The appellant submits that the respondent is a “noisy troublemaker” who does not shy away from controversy, and has participated in other defamation cases, as both plaintiff and defendant. The appellant submits that the respondent’s platform, Rebel Media, has relentlessly attacked and denigrated individuals and groups. The appellant further submits that the respondent’s reputation is so bad that the impugned tweets cannot have caused him any damages, especially since others made similar comments. Even if the appellant’s characterization of the respondent’s reputation were correct, and I make no finding on that issue, this is different from a reputation tainted with criminal conduct depriving innocent victims of charitable donations.

[20] While there is an ephemeral quality to individual tweets, which may have some bearing on the damages ultimately awarded, here the appellant engaged in a sustained attack upon the respondent.

[21] I cannot say that any damages awarded would necessarily be nominal, or that the respondent has suffered only insignificant harm.

[22] On the other side of the balance, the quality of the expression and the motivation of the appellant are relevant to the measure of the public interest in protecting his expression: Pointes, at para. 94. This court in Pointes, at para. 94, held that “deliberate falsehoods, gratuitous personal attacks or vulgar and offensive language”, all part of the expression here, may reduce the public interest in protecting that speech, compared to cases where the message is delivered “without the lies, vitriol, and obscenities.”

[23] This is not to say that resort to some vulgar language will necessarily deprive expression of value worth protecting. However here the tweets posted are imbued with hyperbole and vulgar vitriol, and admittedly false in many respects such that there is little value in protecting their expression.

[24] On balance, the respondent has established that the harm likely to be suffered, or which has been suffered, is sufficiently serious that the public interest in allowing the proceeding to continue outweighs the public interest in protecting the appellant’s expression.
. Lascaris v. B’nai Brith Canada

In Lascaris v. B’nai Brith Canada (Ont CA, 2019) the Court of Appeal considers the SLAPP harm-expression balancing exception, after the Pointes case was released from the Ontario Court of Appeal:
[38] That leaves the balancing requirement under s. 137.1(4)(b). Because of her conclusion regarding the defence of fair comment, the motion judge did not consider the balancing requirement under s. 137.1(4)(b). Consequently, this court must do so.

[39] Section 137.1(4)(b) reads:
[T]he harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
[40] In my view, this balance clearly favours the appellant. I say that because, if the appellant’s action proceeds and if the appellant is ultimately successful, the damages to which the appellant would be entitled could be significant. Accusing any person of supporting terrorists is about as serious and damaging an allegation as can be made in these times.

[41] That reality is sufficient to establish the seriousness of the harm to the appellant and to rebut the respondent’s submission that the appellant failed to lead any evidence to show any damage to his reputation arising from the impugned statements. On that latter point, I would adopt the observation made by Bean J. in Cooke v. MGN Limited, [2014] EWHC 2831, [2015] 2 All ER 622 (QB), at para. 43:
Some statements are so obviously likely to cause serious harm to a person’s reputation that this likelihood can be inferred. If a national newspaper with a large circulation wrongly accuses someone of being a terrorist or a paedophile, then in either case (putting to one side for the moment the question of a prompt and prominent apology) the likelihood of serious harm to reputation is plain, even if the individual’s family and friends knew the allegation to be untrue.[3]
See also Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 111.

[42] Further, the appellant is a lawyer. A lawyer’s reputation is central to his/her ability to carry on their profession. As Cory J. said in Hill, at para. 118:
The reputation of a lawyer is of paramount importance to clients, to other members of the profession and to the judiciary. A lawyer's practice is founded and maintained upon the basis of a good reputation for professional integrity and trustworthiness. It is the cornerstone of a lawyer's professional life. Even if endowed with outstanding talent and indefatigable diligence, a lawyer cannot survive without a good reputation.
[43] The fact that the appellant is no longer engaged in private practice does not mean that his reputation is still not of consequence. The appellant continues to represent clients on a pro bono basis. His reputation will mean as much to those clients as it would to any other client, especially given the nature of the clients to whom he devotes his services.

[44] In reaching that conclusion, I do not mean to suggest that the views of the respondent are not without merit or importance. However, fair disagreements over policies and principles can be undertaken, indeed ought to be undertaken, through responsible discourse. Whatever disagreements there may be between the appellant’s views and the respondent’s views, those views can be exchanged and debated without the need for personal attacks. It remains open to the respondent to express its views on issues that concern it, such as the BDS Resolution and broader BDS debate, for example, without engaging in speech that is arguably defamatory.
. Fortress Real Developments Inc. v. Rabidoux

In Fortress Real Developments Inc. v. Rabidoux (Ont CA, 2018) considered the SLAPP harm-expression balancing exception, concurrent with the release of the Pointes case from the Ontario Court of Appeal:
(ii) The Public Interest Analysis Under Section 137.1(4)(b)

[42] The operation of s. 137.1(4)(b) is considered in Pointes, at paras. 85-101. Fortress submits that, under s. 137.1(4)(b), it is required only to show “grounds to believe” that the harm it has or will suffer because of the tweets is sufficiently serious to make the public interest in allowing its claim to proceed outweigh the public interest in protecting Mr. Rabidoux’s freedom of expression. This submission misreads the section. The phrase “grounds to believe” appears in s. 137.1(4)(a) and not in s. 137.1(4)(b). Under s. 137.1(4)(b), Fortress must satisfy the judge that the harm it has suffered or is likely to suffer is “sufficiently serious” that the public interest in allowing Fortress to vindicate that harm through litigation outweighs the public interest in protecting the expression in issue. The word, satisfy, connotes the usual balance of probabilities standard.

[43] I agree with the submissions of counsel for Fortress that the motion judge’s “public interest” analysis is deficient in certain respects. In my view, however, the motion judge correctly focused on the evidence of damages when considering what harm Fortress had shown that it had suffered or was likely to suffer as a result of the tweets. As explained in Pointes, at para. 88, harm under s. 137.1(4)(b) will usually be measured primarily, although not exclusively, by reference to monetary damages, special or general, suffered by the plaintiff as a result of the defendant’s expression.

[44] The motion judge considered Mr. Rathore’s evidence (adopted in Mr. Petrozza’s affidavit) that Fortress, as well as he and Mr. Petrozza, had suffered damage to their reputation as a result of the tweets and that the tweets may have had a negative impact on Fortress’s business fortunes. The motion judge was not impressed with the evidence, mostly because it consisted almost entirely of Mr. Rathore’s unsubstantiated opinion as to the effect of the tweets. I cannot say the motion judge was wrong in her assessment of this evidence.

[45] I also agree with counsel for Fortress that the motion judge should have considered potential general damages. Counsel correctly notes that general damages are assumed in libel cases: see Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para. 164; Grant v. Torstar Corp., at para. 28. Those damages, however, may be nominal: see Raymond E. Brown, Defamation Law: A Primer, 2d ed. (Toronto: Carswell, 2013), at p. 321; Raymond E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, loose-leaf, 2d ed., vol. 8 (Toronto: Carswell, 1999), at pp. 25-46 to 25-48.

[46] Had the motion judge considered general damages in assessing the potential harm to Fortress, nothing in the motion record would support anything more than nominal general damages. As Mr. Rathore’s cross-examination and some of the tweets from Fortress executives demonstrate, Fortress regards Mr. Rabidoux to be an inconsequential lightweight with no influence in its investment world. Mr. Rabidoux is treated more as a noisy irritant than a threat to Fortress’s business or reputation. To the extent that the record offers any insight into the reach of Mr. Rabidoux’s opinions concerning Fortress, that reach seems confined to persons who already share Mr. Rabidoux’s views. A consideration of the potential general damages flowing from the tweets would add little to the monetary harm caused or likely to be caused to Fortress.

[47] Counsel for Fortress submits, once again correctly, that the motion judge failed to consider its contract claim in assessing harm caused to Fortress. Fortress argues that the December 2015 and January 2016 tweets clearly breached the March 2015 agreement and that under the terms of the agreement, Mr. Rabidoux had agreed to pay $10,000 in damages. Fortress contends that the motion judge should have considered both the monetary consequences of the breach of the agreement, and the harm caused to Fortress’s reasonable expectation that concerns about any future litigation with Mr. Rabidoux had been ended by the agreement. As observed in Pointes, at para. 89, a reasonable expectation of finality in litigation is an interest that warrants protection when considering harm to a plaintiff under s. 137.1(4)(b).

[48] However, a review of the language used in the agreement crafted by Fortress and signed by Mr. Rabidoux strongly indicates that Fortress was seeking much more than finality in litigation when it drafted this agreement. The agreement prohibited Mr. Rabidoux, under threat of a $10,000 penalty, from saying anything “of any kind whatsoever” about Mr. Rathore, Mr. Petrozza, or any of their businesses, projects, or investments. The agreement demanded total silence from Mr. Rabidoux on all business matters relating to Mr. Rathore and Mr. Petrozza, regardless of the nature or content of any comment Mr. Rabidoux might make.

[49] The sweeping nature of the language in the agreement, and the requirement that Mr. Rabidoux pay $10,000 for any breach – regardless of whether the breach caused any harm – strongly suggests that this agreement was designed more to silence Mr. Rabidoux than to gain any finality for Fortress in relation to potential litigation with Mr. Rabidoux. Indeed, the terms of the agreement all but guaranteed further litigation unless Mr. Rabidoux found a different line of work or changed his opinions.

[50] The “gag” Fortress tried to place on Mr. Rabidoux by the terms of the agreement speaks to the potential damage done to the public interest in protecting Mr. Rabidoux’s freedom of expression if Fortress’s claim were allowed to proceed. By advancing a claim under the agreement, Fortress seeks to exclude Mr. Rabidoux from any public discourse relating to Fortress and its principals. In my view, that consequence sits firmly on the side of the public interest analysis in s. 137.1(4)(b) that favours Mr. Rabidoux’s position.

[51] Nor do I accept Fortress’s submission that the tone and content of the impugned tweets render them unworthy of any public interest protection. In keeping with the medium and the intended audience, the tweets are conclusory and, in some respects, sarcastic. There is, however, no basis upon which to conclude that they are deliberately false or were intended to mislead. While the subject matter and tone may disentitle Mr. Rabidoux from claiming any special or added public interest in the expressions, the tweets retain the inherent value that most expressions on matters of public interest have: see Pointes, at para. 93.

[52] In summary, while the motion judge’s public interest analysis was not as fulsome as it should have been, my analysis arrives at the same result. Fortress failed to show that the harm caused or likely to be caused to it by the impugned tweets is “sufficiently serious” to outweigh the public interest in protecting Mr. Rabidoux’s right to freedom of expression.
. Able Translations Ltd. v. Express International Translations Inc.

In Able Translations Ltd. v. Express International Translations Inc. (Ont CA, 2018) considered the SLAPP harm-expression balancing exception:
(iv) Section 137.1(4)(b) – The Balancing of Competing Interests

....

[38] Section 137.1(4)(b) assumes that some cases that can survive the merits inquiry under s. 137.1(4)(a) should nevertheless be dismissed prior to trial. Section 137.1(4)(b) requires a fact-specific weighing of two different manifestations of the public interest. This court has set out its interpretation of the provision in Pointes, at paras. 85-101.

[39] The motion judge’s analysis of s. 137.1(4)(b) begins with a detailed examination of the factors relevant to the “harm suffered or likely to be suffered” by Able as a result of Mr. Vitu’s posts. The motion judge referred to several factors that he took into account in assessing the harm suffered or likely to be suffered by Able. The factors included:
• the posts were on the site for about ten days and never reappeared;

• there was no evidence that more than a handful of people saw the posts. The evidence indicates that only two persons responded to Mr. Vitu’s first post;

• the posts said nothing by way of detail concerning Able’s business practices and would mean little to someone not familiar with Able and its business practices;

• Mr. Vitu’s posts did not incorporate by reference the many, much more detailed and sometimes vitriolic, references to Able’s business practices found on various websites;

• there was no evidence connecting Mr. Vitu’s posts to the other posts describing Able’s business practices;

• given the nature and quantity of complaints that were in the public realm, Mr. Vitu’s comments had little, if any, capacity to cause harm to Able’s reputation; and

• the affidavit filed by Able’s vice-president listed certain clients whose business she said had been lost, and claimed an overall percentage drop in Able’s revenues. However, the affidavit offered no details of any kind to support those claims nor, more importantly, to connect any of the alleged losses to Mr. Vitu’s two posts.
[40] The factors considered by the motion judge were all relevant to his assessment of the harm suffered or likely to be suffered by Able. It was for the motion judge to weigh those factors. His conclusions that the harm was minimal and that the public interest in permitting the claim to proceed to vindicate that harm was “slight” were reasonable on the evidence.

[41] The motion judge next considered the public interest in protecting Mr. Vitu’s posts. Three factors suggested a high public interest.

[42] First, the subject matter of the posts, a person’s suitability for a high elected office, was a topic of great importance to the public. Second, the posts did not repeat the negative and vitriolic comments made by others about Able, but instead focused on Mr. Fonseca’s suitability for public office by virtue of his previous connection to Able. The point was not to vilify Able, but to draw the attention of the voting public to a fact that, in Mr. Vitu’s opinion, provided reason to not vote for Mr. Fonseca.

[43] Lastly, the motion judge observed that this was a situation in which Able’s actions had actually silenced Mr. Vitu. Because of Able’s litigation threats, Mr. Vitu was effectively denied his right to fully participate in the political process. The motion judge recognized the significant public interest in protecting against that consequence.

[44] The factors considered by the motion judge were relevant to the assessment of the weight to be given to the public interest in protecting Mr. Vitu’s expression. Those factors were reasonably capable of making out a compelling case in favour of protecting Mr. Vitu’s freedom of expression.


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