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SLAPP - Bad Faith Damages Against a SLAPP Plaintiff [CJA s.137.1(9)]

. United Soils Management Ltd. v. Mohammed

In United Soils Management Ltd. v. Mohammed (Ont CA, 2019) the Court of Appeal considered awards of damages against a SLAPP plaintiff:
[19] Both motion judges heard and decided the s. 137.1 motion before this court released a series of judgments interpreting s. 137.1 in some detail: see 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, 142 O.R. (3d) 161 and the related cases that were released simultaneously. Some of the motion judges’ analyses have been overtaken by Pointes and those related authorities.

[20] In light of the significant developments in the case law since the motion judges released their reasons, we see no need to engage in a detailed consideration of those reasons. Whatever may be said about the correctness of their analyses in respect of s. 137.1(4)(a) (the substantial merit and valid defense provisions), the appellant cannot succeed on these appeals unless it satisfies this court that the motion judges each reached the wrong conclusion in respect of s. 137.1(4)(b), the public interest balancing provision.

[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. ...

....

Damages

[29] A separate issue arises on both of these appeals and that is the proper application of s. 137.1(9). That section reads:
If, in dismissing a proceeding under this section, the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate.
[30] The motion judge awarded Ms. Mohammed damages of $7,500. In doing so he found that prior motions brought by the appellant were “an objective demonstration of improper purpose”: Mohammed, at para. 78. The motion judge also pointed out that the appellant instituted the proceeding notwithstanding that Ms. Mohammed had apologized, as demanded by the appellant. He found that this was “a continuation of its desire to intimidate”: Mohammed, at para. 78.

[31] In fixing the amount of damages, the motion judge noted that there was no medical evidence in support of Ms. Mohammed’s claim that she suffered stress as a result of the proceeding being instituted against her. He also noted that there was no other corroborating evidence of any adverse effects on Ms. Mohammed. Nevertheless, the motion judge accepted that the proceeding unnecessarily caused Ms. Mohammed stress that affected her day-to-day life: Mohammed, at paras. 79-80.

[32] In the case of Ms. Barclay, the motion judge awarded her damages of $20,000. The motion judge found that the action was brought in bad faith and for an improper purpose “of stifling public debate around a crucially important public issue”: Barclay, at para. 136. The motion judge found that Ms. Barclay had suffered “personal anguish” as a result of the action: Barclay, at para. 136.

[33] The motion judge also found, in the alternative, that s. 137.1(9) would permit an award of punitive damages in the same amount. She found that the appellant’s conduct “warrants denunciation and deterrence”: Barclay, at paras. 134, 136.

[34] The wording of s. 137.1(9) is somewhat problematic. On one view, the wording of s. 137.1(9) would seem redundant, as a finding that an action has been commenced for the purpose of unduly limiting expression on matters of public interest would seem to qualify as one that has been brought for an improper purpose. On another view, the wording of s. 137.1(9) could be seen as an effort to separate out a subset of SLAPP cases which go beyond simply reflecting an effort to limit expression and include active efforts to intimidate or to inflict harm on the defendant.

[35] A review of the “Anti-SLAPP Advisory Panel Report to the Attorney General”, dated October 28, 2010, supports the latter interpretation. In that report, the Advisory Panel recommended, at para. 46:
[T]he court should not be required to make findings as to bad faith or improper motive on the part of the plaintiff in deciding a motion under the special procedure. If in a particular case, however, the court is satisfied on the record before it that an action has been brought in bad faith or for an improper motive, such as punishing, silencing or intimidating the defendant rather than any legitimate pursuit of a legal remedy, an additional remedy should be available for this improper conduct. In such circumstances, the court should have the power to award damages to the defendant in such amount as is just. [Emphasis added].
[36] We would make two observations regarding the approach taken by the motion judges in these cases with respect to this issue. First, we do not view it as necessary for a defendant to adduce medical evidence in order to support a claim for damages. While medical evidence might be of assistance in determining the proper quantum of damages to be awarded, in certain cases, such as the ones here, it may be presumed that damages will arise from the use of a SLAPP lawsuit. Both of the respondents were individuals inexperienced in litigation, who would understandably suffer the stress and anxiety associated with being the subject of a proceeding of this type. This is especially true given the intimidating nature of the conduct of the appellant.

[37] That observation does not mean that damages will naturally follow in every case where the action is dismissed. The exact limits to the circumstances justifying an award of damages must await further development of the law surrounding s. 137.1. Whether an award of damages is warranted should also take into account the presumption that costs will be awarded on a full indemnity basis. Such an award may, in some cases, address the harm to a defendant that arises from a SLAPP proceeding.

[38] Second, we do not view the wording of s. 137.1(9) as being so broad as to encompass punitive damages awards. In our view, the thrust of s. 137.1(9) is to provide compensation for harm done directly to the defendant arising from the impact of the instituted proceeding. The section is not intended to provide wide-ranging authority for the court to sanction the conduct of the plaintiff through a damages award, such as an award for punitive damages. Any need to sanction the conduct of the plaintiff is already addressed through the provision in s. 137.1(7) of a presumptive award of full indemnity costs.

[39] All of that said, we do not see any basis for interfering with the damages awards that were made in either of these cases. There was evidence of harm to Ms. Mohammed and Ms. Barclay arising from these proceedings. Each of the motion judges gave reasons for the conclusions that they reached regarding the quantum of damages to be awarded. There is no palpable and overriding error in either of their conclusions that would warrant intervention by this court.



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