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SLAPP - Public Interest Threshold [CJA s.137.1(3)]

. Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation (I)

In Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation (I) (Ont CA, 2021) the Court of Appeal considered the threshold issue of SLAPP law, whether an expression was in the public interst. In this case the narrower issue was whether a claim in tort - though related to a further defamation tor, but not being itself directly expressive - could meet the public interest expression threshold [paras 31-47].

. Sokoloff v. Tru-Path Occupational Therapy Services Ltd.

In Sokoloff v. Tru-Path Occupational Therapy Services Ltd. (Ont CA, 2020) the Court of Appeal denied an appeal of a SLAPP motion on the basis that it didn't involve the public interest:
[17] In its decision in Pointes, the Supreme Court affirmed this court’s approach to identifying the public interest, following Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640. Expression is to be assessed as a whole and the question is whether “some segment of the community would have a genuine interest in receiving information on the subject”: Pointes (SCC), at para. 102.

[18] There is necessarily a normative aspect to what is “genuinely” a matter of public interest. As the Supreme Court put it, there is “no single ‘test’” for identifying the public interest; “‘[t]he public has a genuine stake in knowing about many matters’ ranging across a variety of topics”: Pointes (SCC), at para. 27; Grant, at paras. 103, 106. The court described the proper interpretation of whether expression relates to a matter of public interest as both “broad and liberal” and “generous and expansive”: Pointes (SCC), at paras. 24, 30.

[19] But not everything relates to a matter of public interest. For example, it is not enough if expression simply makes reference to something that is of public interest, or to something that arouses the public’s curiosity. Moreover, the court’s instruction of interpretive generosity cannot be read in isolation. The scope for legitimate interpretation of vaguely worded concepts such as “public interest” must be informed by the purpose of the legislation: to safeguard the fundamental value that is public participation in democracy. The burden is on the moving party to establish that its expression relates to a matter of public interest, albeit that this burden is not an onerous one.

[20] The appropriate inquiry is contextual in nature. However, the Supreme Court makes clear in Pointes that no qualitative assessment of the expression in question is to be made. It is enough that the expression relates to a matter of public interest. As Côté J. put it, “it is not legally relevant whether the expression is desirable or deleterious, valuable or vexatious, or whether it helps or hampers the public interest”: Pointes (SCC), at para. 28. The question at the heart of s. 137.1(3) is this: Understood in its context, what is the expression really about?

....

[24] This, too, was inappropriate. The motion judge could properly consider the entire communication and the context in which it was made. But the motivation behind the communication – why the impugned expression occurred – is a subjective consideration that is not relevant to determining the objective nature of that expression. The quality or merits of the expression and the manner in which the expression is conveyed are similarly irrelevant.

[25] Mistakes have sometimes been made in this regard – see Levant, at para. 11; Ontario College of Teachers v. Bouragba, 2019 ONCA 1028, 51 C.P.C. (8th) 280, at paras. 31-33; and Nanda, at para. 37 – so the point bears repeating: Motive, merit, and manner are irrelevant in determining whether expression relates to a matter of public interest under s.137.1(3).

....

[32] The task of the motion judge under s. 137.1(3) is to determine “what the expression is really about”, bearing in mind the purpose of s. 137.1: protecting expression relating to matters of public interest and safeguarding the fundamental value of public participation in democracy: Pointes (SCC), at para. 30. Again, only expression relating to a matter of public interest attracts the statute’s protection; “expression that simply makes reference to something of public interest” does not: Pointes (SCC), at para. 29.

....

[34] Comparison to the Supreme Court’s decision in Platnick is helpful in illustrating the nature of the public interest under s. 137.1(3). In that case the impugned expression was an email, sent by a lawyer who was the president-elect of the Ontario Trial Lawyers’ Association. The email, sent to several hundred members of the Association by a listserv, alleged that a doctor frequently engaged as a medical expert in insurance litigation had engaged in dishonest conduct. The Supreme Court agreed with this court that the expression related to a matter of public interest. In Platnick (SCC), Côté J., for the majority stated that the defendant’s email:
raises concerns regarding the truthfulness, reliability, and integrity of medical reports filed on behalf of insurers in the arbitration process. In turn, her email raises concerns regarding the integrity of the arbitration process itself and the proper administration of justice writ large. Further, the email is directed at a not insignificant number of individuals, who, more importantly, have a special interest in exactly that... (at para. 83)
. Nanda v. McEwan

In Nanda v. McEwan (Ont CA, 2020) the Court of Appeal considered the 'threshold' public interest requirement of the SLAPP rules [this case was heard after the Court of Appeal's decision in Pointes Protection, but not after the Supreme Court of Canada decision]:
(a) Section 137.1(3): The Threshold Requirement

[34] The motion judge correctly identified Pointes as the dispositive authority. In my respectful view, however, he mischaracterized the context of the expressions at issue, defined the segment of the community too narrowly, and drew an unwarranted distinction between expressions made in the context of “private” and “public” organizations.

[35] Pointes and subsequent decisions of this court have referred to Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640 for guidance in the analysis of the “public interest” requirement. The following considerations may be relevant:
• the context of the expression, having regard to the communication as a whole: Pointes, at para. 60;

• expressions that relate to private matters do not become matters relating to the public interest merely because the public is curious about them: Pointes, at para. 61;

• “[a]n expression can relate to a matter of public interest without engaging the interest of the entire community, or even a substantial part of the community. It is enough that some segment of the community would have a genuine interest in the subject matter of the expression”: Pointes, at para. 62;

• public interest does not turn on the size of the audience: Pointes, at para. 63; and

• the concept of “public interest” is a broad one that does not take into account the merits or manner of expression, nor the motive of the author. It covers language that is intemperate, false, and even contrary to the public interest: Pointes, at paras. 55, 65.
[36] In Pointes, at para. 54, Doherty J.A. suggested that the public interest can be determined by asking: “what is the expression about, or what does it pertain to?”

[37] In identifying the purpose and context of the expressions as making “disparaging, inflammatory and allegedly defamatory comments about the Plaintiff to other local union members to get those other members not to vote for the Plaintiff”, the motion judge focused on the manner of expression and the motives of the appellants. This runs contrary to the observations of Doherty J.A. in Pointes, at para. 65, that the analysis does not consider the motives of the author or the merits of the expression. The motion judge made the error that this court identified in Levant, at para. 11.

[38] The motion judge also defined the group interested in the expressions too narrowly. Specifically, he said that “[t]he expression may be of interest to the approximately 200 members of the local union, but NOT the public generally or a segment of the public.” First, as Doherty J.A. noted in Pointes, at para. 63, the public interest does not turn on the size of the audience. Second, the public interest extended well beyond those who were direct recipients of the texts and the posters. It would have included other members of CUPW, as well as the public sector more generally.

[39] Finally, even if one were to accept that a local of a major Canadian public union is a “private” organization, the distinction between expressions made in the context of “private” and “public” organizations is not found in Pointes.

[40] Had the motion judge properly addressed the question, “what is the expression about?”, he would have responded that it was about allegations of corruption and misconduct by a candidate for the office of President of the Toronto Local of the Canadian Union of Postal Workers.

[41] In my view, expressions concerning racism, sexism, corruption, abuse of union funds, and misconduct by a candidate for President of the Toronto Local of a Canadian public sector union relate to a matter of public interest. In the words of McLachlin C.J.C. in Torstar, at para. 102, “[i]t is enough that some segment of the community would have a genuine interest in receiving information on the subject”: see also Torstar, at para. 105. Members of the Toronto Local, beyond the recipients of the posters and WhatsApp messages, would clearly have a genuine interest in the expressions in the context of an election campaign. But the scope of public interest would extend even further, to the broader community served by members of CUPW and the public sector.

[42] It is of note that two of the decisions released contemporaneously with Pointes deal with expressions made in the context of elections. In Armstrong v. Corus Entertainment Inc., 2018 ONCA 689, 143 O.R. (3d) 54, the plaintiff and one of the defendants, Nancy McSloy, were candidates for a position as city councillor in the municipal election in London, Ontario. During the campaign, Ms. McSloy made comments in a press release and on a talk radio broadcast, the gist of which were that Mr. Armstrong had used threats, intimidation, illegal acts, and bullying to get what he wanted from others. On the motion under s. 137.1, the motion judge held that the defendants had satisfied him that the subject matter of the claims related to “a matter of public interest” under s. 137.1(3). Doherty J.A. observed, “[t]hat finding is not in dispute on the appeal. Nor should it be. Statements about a candidate’s fitness for office made in the course of an ongoing election campaign undoubtedly qualify as expression relating to a matter of public interest.”

[43] In Able Translations Ltd. v. Express International Translations Inc., 2018 ONCA 690, 428 D.L.R. (4th) 568, the expressions at issue were made in the course of a federal election campaign and related to the suitability of a candidate to sit as a member of Parliament, given his prior senior management position with the plaintiff corporation. In affirming the motion judge’s conclusion that the communications related to a matter of public interest, Doherty J.A. observed, at para. 19, “[n]o one disputes that communications directed at a person’s suitability to hold elected office, particularly when made in the middle of an election campaign, are communications relating to a matter of public interest.”

[44] Subsequently, in Labourers’ International Union of North America, Local 183 v. Castellano, 2020 ONCA 71, 444 D.L.R. (4th) 183, this court affirmed a motion judge’s decision to dismiss an anti-SLAPP motion and to grant summary judgment in favour of the plaintiff for defamation. The defendant, a former member of the plaintiff local, had made internet posts in which he described the union as, among other things, “terrible”, “corrupt”, “despicable”, “evil”, “no good degenerate scum”, a “vicious pit of snakes” and as having a “bad reputation for corrupt and deceitful behaviour.” He described the union’s counsel and other members and officers in similar terms.

[45] Referring to Pointes, the motion judge in Castellano noted that the fact that the defendant’s posts contained derogatory, malicious, and false statements did not preclude a finding that the expressions related to a matter of public interest. Looking at the broader context of the expressions, other statements made by the defendant were concerned with the quality of representation he felt he was being provided by the union. The motion judge found this was a matter of public interest, at para. 40:
While the posts may be understood as the public airing of very personal grievances, they may also be construed as addressing the Union’s governance and the suitability of some of the plaintiffs to act as union representatives… I accept Mr. Castellano’s submission that this characterization of the expression has significance for members of Local 183 as well as the community at large. This is sufficient to ground a finding that Mr. Castellano has met his onus under s. 137.1(3).
[46] The motion judge went on to dismiss Mr. Castellano’s anti-SLAPP motion, finding that the public interest in the expressions was low and that the harm suffered by the plaintiffs outweighed the public interest in protecting the defendant’s expression. This court dismissed an appeal from that portion of the judgment.

[47] In summary, the motion judge erred in this case by focusing on the nature of the expressions and failing to consider their context, in defining the group interested in the expressions too narrowly, and in treating the “private” context as determinative. In my view, allegations of racism, sexism, corruption, and misconduct in the context of the election of the President of a major local of an important public sector union is a matter of public interest. The appellants’ motion passed the public interest threshold. This requires this court to conduct the additional analysis under s. 137.1(4).
. Veneruzzo v. Storey

In Veneruzzo v. Storey (Ont CA, 2018) the Court of Appeal considered the SLAPP public interest threshold:
(v) Did the Motion Judge Characterize the Phrase “Public Interest” too Narrowly?

....

[24] The phrase “public interest” takes its meaning from the circumstances of the specific case. An exhaustive definition is impossible. One must ask: what is the communication impugned in the lawsuit about?

[25] I agree with the motion judge’s characterization of the relevant posts: see above at para. 13. Put a little differently, I would characterize the comments insofar as they related to Ms. Veneruzzo, the accident, and the respondents, as an attempt to create a new narrative about the accident. In that narrative, the appellant plays the role of victim (e.g. the references to his injuries) and shifts the focus of the cause of the accident from his dangerous driving to the deceased’s driving habits (e.g. her alleged constant texting while driving) and her family’s character (e.g. their alleged drinking and drunk driving on the evening of the funeral).

[26] Like the motion judge, I see nothing in the posts that could reasonably be said to engage broader issues of road safety, the operation of the justice system, or the public perception of the conduct of the police.

[27] The appellant submits that the motion judge wrongly concluded that public notoriety or controversy could not be equated with public interest for the purposes of s. 137.1(3). There is no doubt that public notoriety is a kind of public interest. However, to the extent that the public interest does not rise above “mere curiosity or prurient interest”, it cannot satisfy the public interest requirement in s. 137.1(3): Grant v. Torstar Corp., at para. 105. The motion judge appreciated this distinction.

[28] The motion judge properly instructed himself on the law as it relates to the meaning of “public interest” in s. 137.1(3). I see no error in his finding that the appellant’s attempt to shift the blame for the accident to the deceased and her family did not constitute expression on a matter relating to the public interest. As the appellant had failed to meet his onus under s. 137.1(3), the motion judge properly dismissed the motion.
. Fortress Real Developments Inc. v. Rabidoux

In Fortress Real Developments Inc. v. Rabidoux (Ont CA, 2018) considered the SLAPP public interest threshold, concurrent with the release of the Pointes case from the Ontario Court of Appeal:
(i) The Interpretation of Section 137.1(3)

[36] The meaning of the phrase “relates to a matter of public interest” in s. 137.1(3) was considered in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, at paras. 50-66 (released concurrently with these reasons). Like the motion judge, this court has opted for a broad reading of the phrase, consistent with the analysis in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640. In Pointes, at para. 65, this court said:
In summary, the concept of “public interest” as it is used in s. 137.1(3) is a broad one that does not take into account the merits or manner of the expression, nor the motive of the author. The determination of whether an expression relates to a matter of public interest must be made objectively, having regard to the context in which the expression was made and the entirety of the relevant communication. An expression may relate to more than one matter. If one of those matters is a “matter of public interest”, the defendant will have met its onus under s. 137.1(3).
[37] The arguments advanced by Fortress were considered and rejected in Pointes. I will, however, make brief reference to Fortress’s principal argument.

[38] Fortress submits that s. 137.1(3) must be strictly construed because it restricts an individual’s right to sue for defamation. Counsel refers to the well-known rule of statutory interpretation that explicit language is required to divest a person of existing rights: Crystalline Investments Ltd. v. Domgroup Ltd., 2004 SCC 3, [2004] 1 S.C.R. 60, at para. 43.

[39] Section 137.1(3) does not restrict Fortress’s right to bring an action for defamation. A finding under s. 137.1(3) that the expression in issue “relates to a matter of public interest” in no way prevents Fortress from pursuing its lawsuit. A finding that Mr. Rabidoux met his onus under s. 137.1(3) does no more than open the door to the two-pronged inquiry required under s. 137.1(4). The outcome of that inquiry determines whether Fortress’s claim survives Mr. Rabidoux’s s. 137.1 motion.

[40] Applying the analysis in Pointes, I read the tweets as intended to educate and caution the investing public about the risks associated with certain kinds of real estate-based investments. The identified risks include sudden downturns in the real estate market, false predictions of future investments, and “shady”, inadequately regulated operators who understate the risks associated with certain kinds of investments. In my view, alerting the investing public to risks associated with the purchase of certain products in the public marketplace is a matter of public interest.

[41] I see no error in the motion judge’s determination that the tweets related to a matter of public interest.
. Able Translations Ltd. v. Express International Translations Inc.

In Able Translations Ltd. v. Express International Translations Inc. (Ont CA, 2018) the Court of Appeal considered the SLAPP public interest threshold:
(i) Section 137.1(3) – Did the Posts Relate to a Matter of Public Interest?

[19] The respondents (moving parties) had the onus to show that the posts that gave rise to Able’s defamation claim related to a matter of public interest. The motion judge held that the contents of the posts, considered as a whole, related to Mr. Fonseca’s suitability to sit as a member of Parliament, given his prior senior management position with Able. No one disputes that communications directed at a person’s suitability to hold elected office, particularly when made in the middle of an election campaign, are communications relating to a matter of public interest.

[20] Able takes issue with the motion judge’s characterization of the contents of the posts. Able contends that the posts are in reality an attack on Able’s business practices and its reputation. Able submits that the attack is made “under the cloak of a political debate”. The references to Mr. Fonseca are said to be a ruse intended to draw the reader to Able’s allegedly disreputable business practices and poor reputation: the true subject matter of the posts.

[21] In advancing this submission, Able stresses that the posts offer no detail of Able’s alleged improper business practices. Able argues that the absence of any detail indicates that the posts were made maliciously to damage Able’s business reputation and thereby improve the business prospects of the respondents, competitors of Able.

[22] The motion judge correctly articulated the meaning of “public interest” in s. 137.1(3): see 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, at paras. 50-66 (released concurrently with these reasons). His reasons (at para. 26) lean heavily on Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, the guiding authority. Able’s complaint is that the motion judge misapprehended the meaning of the posts. I approach this submission by asking whether the posts could reasonably bear the interpretation that the motion judge ascribed to them: see Pointes, at para. 66.

[23] The motion judge’s interpretation of the posts was reasonable. The content of the posts assumed that the reader had knowledge of Able and its business affairs and shared the author’s view of Able. The point of the posts was not to inform the reader about Able’s behaviour, but to inform the reader of the connection between Mr. Fonseca, a candidate for Parliament, and Able. The posts asserted that Mr. Fonseca’s candidacy should be viewed in a negative light because of his prior work connection to Able. As the motion judge aptly put it (at para. 28), the purpose of the post was “to denounce Mr. Fonseca by reason of his connection to Able” (emphasis in original).

[24] As set out in Pointes, at paras. 54 and 60, when deciding if a publication relates to a matter of public interest, one asks: having regard to the context and taking the expression as a whole, what is the expression about? I think the posts could reasonably be read as an opinion offered by Mr. Vitu about Mr. Fonseca’s suitability for public office in light of his prior work connection with Able. Although the posts no doubt paint Able in a negative light, they do so in the course of making the point that Mr. Fonseca should not be regarded as a suitable person to hold public office as a member of Parliament.
. Levant v. Day

In Levant v Day (Ont CA, 2019) the Court of Appeal considered the public interest threshold, after the Pointes Protection case at the Ontario Court of Appeal:
(1) Did the appellant’s tweets relate to a matter of public interest?

[9] The motion judge held that the appellant had failed to satisfy his onus of showing that the expressions related to a matter of public interest: Levant, at paras. 24-25. She recognized that the Fort McMurray fires were matters of public interest, but found that the Day tweets were, “in pith and substance, direct personal attacks on Ezra Levant”: Levant, at para. 24. Citing Able Translations Ltd. v. Express International Translations Inc., 2016 ONSC 6785, 410 D.L.R. (4th) 380, aff’d 2018 ONCA 690, 428 D.L.R. (4th) 568, the motion judge noted that “[w]here the pith and substance of the matter is a defamatory personal attack thinly veiled as a discussion on matters of public interest, the court has all the tools it requires to determine the true nature of the expression and rule accordingly”: Levant, at para. 23.

[10] The motion judge did not have the benefit of this court’s decision in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, 142 O.R. (3d) 161, in which the concept of “public interest” was summarized at para. 65:
In summary, the concept of “public interest” as it is used in s. 137.1(3) is a broad one that does not take into account the merits or manner of the expression, nor the motive of the author. The determination of whether an expression relates to a matter of public interest must be made objectively, having regard to the context in which the expression was made and the entirety of the relevant communication. An expression may relate to more than one matter. If one of those matters is a “matter of public interest”, the defendant will have met its onus under s. 137.1(3). [Emphasis added.]
[11] In focusing on the merits of the allegation of defamation, the manner of expression and the motives of the author, the motion judge committed an extricable error of law displacing the deference otherwise due to her conclusion. While the motion judge found that the appellant had launched a defamatory personal attack, his motive for the tweets is a matter distinct from the subject matter of the tweets.

[12] The appellant’s tweets, when taken as a whole and in context, are about the legitimacy of the respondent’s fundraising campaign, the benefits which should properly flow to victims of the Fort McMurray forest fires from charitable contributions and the treatment of donor contributions. These indisputably relate to a matter of public interest.


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