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Torts - SLAPP - Harm-Expression Balancing (3). 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 Twitter vaccination dispute.
In these quotes the court considers the CJA s.137.1(4)(b) 'expression-harm' balancing:[26] Second, the motion judge found that the appellant had offered no evidence of any harm caused to her reputation as a result of the impugned tweets, other than “vague, unparticularized statements.” Therefore, even if the words complained of were defamatory, and some general damage to the appellant’s reputation is therefore to be presumed, any such damage is likely to be assessed as being merely nominal.
[27] Section 137.1(4)(b) 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 judge that the harm they have suffered, or are likely to suffer, is “sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.”
[28] Given the at most nominal damages suffered by the appellant as a result of the impugned tweets by Maciver, the motion judge found that the public interest in protecting Maciver’s right to speak out on a matter of public interest outweighs any considerations that might otherwise favour allowing the appellant’s defamation action against him to continue.
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[33] The motion judge also found that the claim against Picard, Weeks and Picazo should be dismissed pursuant to s. 137.1(4)(b) of the CJA, because the appellant had failed to provide evidence showing that she had suffered any harm from the impugned tweets by Picard, Weeks or Picazo. The appellant’s claims of harm were completely undifferentiated and were not linked to any of the impugned statements by these three defendants. In any event, even if the appellant’s reputation had been harmed, it may well have been self-inflicted, resulting from professional and public criticism received from numerous commentators over her controversial positions on COVID-19.
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C. APPLICABLE STATUTORY FRAMEWORK
[36] The purpose of s. 137.1 is to provide a mechanism to prevent strategic lawsuits against public participation (“SLAPPs”): 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at paras. 16, 38, 62 and its companion case, Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 74. A SLAPP is a lawsuit that has been initiated as an indirect tool to limit the expression of others, rather than in order to vindicate a bona fide claim.
[37] Section 137.1 places an initial burden on the moving party, the defendant in a lawsuit, to satisfy the judge that the proceeding arises from an expression relating to a matter of public interest. Once that showing is made, the burden shifts to the responding party, the plaintiff, to satisfy the motion judge that there are grounds to believe that the proceeding has substantial merit, that the moving party has no valid defence, and that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression: Pointes Protection, at para. 18.
[38] As Côté J. emphasized in Pointes Protection, the final weighing exercise in s. 137.1(4)(b) is the “fundamental crux of the analysis” since it enables the motion judge to determine “what is really going on in the case before them”: Pointes Protection, at para. 18. The burden is on the plaintiff to satisfy the motion judge that the harm that they have or are likely to suffer from 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.
[39] Three points bear emphasis in the consideration of the weighing exercise under s. 137.1(4)(b).
[40] First, the plaintiff is required to show, not merely the existence of harm, but harm that is “serious”. The presumption of damages in a defamation action may be sufficient to establish the existence of harm but this will not show that it is “serious”: Hansman v. Neufeld, 2023 SCC 14, 73 B.C.L.R. (6th) 173, at para. 67; Pointes Protection, at paras. 70-71; Bent, at para. 144. Serious harm requires the plaintiff to provide evidence from which an inference can be drawn that the harm is of a magnitude sufficient to outweigh the public interest in protecting the defendant’s expression.
[41] Second, the plaintiff must show a causal link between the defendant’s expression and the serious harm they claim to have suffered. Such evidence is particularly important where there may be sources other than the defendant’s expression that may have caused the plaintiff harm: Pointes Protection, at para. 72.
[42] Third, assuming the motion judge applied the correct legal test and did not misapprehend the evidence, a motion judge’s determination on a s. 137.1 motion, including findings regarding the harm suffered by the plaintiff, are entitled to deference on appeal: Bent at para. 77; Levant v. DeMelle, 2022 ONCA 79, 79 C.P.C. (8th) 437, at para. 31.
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(2) The motion judge did not err in finding that the public interest in allowing the appellant’s proceeding against the Remaining Defendants to continue did not outweigh the public interest in protecting their expression
[54] The appellant argues that the motion judge made three errors in considering whether the public interest in permitting her proceeding against the Remaining Defendants to continue outweighed the public interest in protecting their expression, pursuant to s. 137.1(4)(b): first, the motion judge erred by focusing on “damages” instead of “harm”; second, she erred in requiring the appellant to establish a causal link between the harm she had suffered and the particular impugned statements made by the Remaining Defendants; and third, the motion judge erred by not considering the “quality” of the Remaining Defendants’ expression.
[55] In my view, the motion judge made none of the errors alleged.
[56] Considering the first objection, the motion judge did not erroneously require the appellant to adduce evidence of damage, as distinct from harm. The motion judge simply found that the appellant had failed to adduce any evidence of actual harm, apart from the appellant’s bold, conclusory assertion that her reputation had been damaged by the statements made by the Remaining Defendants. Moreover, even this conclusory statement was contradicted by her further claim that she remains a highly regarded member of the medical profession.
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[61] Turning to the impugned statements made by Picard, Weeks and Picazo, the motion judge found that there was an extremely high public interest in protecting their right to speak out on the statements made by the appellant regarding COVID-19. As the motion judge pointed out, questions surrounding the development of effective treatments for COVID-19, including the need for vaccines, were matters of great public interest to the medical profession and the public at large. Nor did the language used by any of them in describing the appellant include the use of insults or vitriol. I see no basis for interfering with the motion judge’s finding that the public interest in protecting the speech of Picard, Weeks and Picazo far outweighed the appellant’s interest in continuing her claim. . Chaudhary v. Shadid
In Chaudhary v. Shadid (Ont CA, 2023) the Court of Appeal considered a SLAPP appeal, in these quotes focussing on CJA 137.1(4)(b) ['harm-expression balancing']:(2) Balancing Under s. 137.1(4)(b)
[11] The appellants further submit that the motion judge erred when balancing the harm suffered or likely to be suffered as a result of the impugned speech on the one hand, and the public interest in protecting the expression and public participation, on the other. They submit that she erred in disregarding non-financial harm, and that the vindication of their reputations should have weighed more heavily in the balance. We do not accept these submissions.
[12] The appellants sought substantial damages – at least $240,000 in damages. It was an important part of their claim. In their pleadings, the appellants claimed: “This has caused significant and irreparable harm to [the appellants’] reputations, both personal and professional. The actual damages will be the subject of a damages report in advance of trial, but are expected to be in the many hundreds of thousands of dollars, if not millions” (emphasis added).
[13] As the motion judge noted, the appellants adduced no evidence of actual harm. All she could rely upon was the presumption of harm. Referring to Bent and its consideration of the balancing under s. 137.1(4)(b) at para. 144, she observed: “General damages in the nominal sense will ordinarily not be sufficient for this purpose”: at para. 59.
[14] The motion judge also focused on the lack of an evidentiary link between the respondent’s sharing of the Post, deleted after 90 minutes, and the harm claimed to have been suffered by the appellants. There was no evidence as to how many people would have viewed the Post. At the time of the motion, Mr. Elahi’s post was still active. The motion judge said, at para. 64: “Given this and the absence of any evidence of harm aside from the legal presumption, I have to conclude that the [appellants’] harm is minimal”.
[15] The motion judge conducted this balancing in the context of the broader purposes of s. 137.1 of the CJA, and in light of the guidance provided by the Supreme Court of Canada in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587. We see no error in her approach, nor in the conclusion that she reached. . 2110120 Ontario Inc. v. Buttar
In 2110120 Ontario Inc. v. Buttar (Ont CA, 2023) the Court of Appeal considers the plaintiff's burden of the SLAPP 'harm/expression burden' [under CJA 137.1(4)(b)]:[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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[33] I pause here to note that in Hansman v. Neufeld, 2023 SCC 14, which was released by the Supreme Court on May 19, 2023 (after the hearing of this appeal), the court stated that the weighing exercise in s. 137.1(4)(b) need not be the final step in the analysis. In many cases, this may reduce the extensive time and cost spent on a detailed analysis of s. 137.1(4)(a). The outcome of an anti-SLAPP motion, when considered in the light of the origins and stated purposes of the provision, is typically obvious to a motion judge. That said, a motion judge must still address the requirements of s.137.1(4)(a)(i) and (ii), keeping in mind that an anti-SLAPP motion is a screening mechanism and engages a limited review of the merits and defence of the action.
[34] In this appeal, given my conclusion on the s. 137.1(3) issue, I must consider the matter afresh and briefly review the merits and the defences, based on the evidence. Having said that, the weighing exercise leads one to the unmistakeable conclusion that the motion should be dismissed.
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(b) Section 137.1(4)(b) – Weighing harm against the public interest in the expression
[77] The final stage of the analysis under s. 137.1(4) is to balance the harm to the respondents against the public interest in the appellants’ expression. Section 137.1(4)(b) requires that the plaintiff prove on a balance of probabilities that, due to the harm likely to have been or to be suffered by the plaintiff as a result of the defendant’s expression, the public interest in allowing the proceeding to continue outweighs the proceeding’s deleterious effects on expression and public participation: Hansman, at para. 59; Pointes Protection, at para. 82.
(i) Harm alleged to have been suffered and public interest in permitting the Action to continue
[78] I begin by considering the harm to the respondents that is alleged to have resulted from the appellants’ defamatory statements. A responding party has the onus to establish the existence of harm resulting from the expression. No definitive determination of harm or causation is required. The onus on a plaintiff is to “simply provide evidence for the motion judge to draw an inference of the likelihood in respect of the existence of harm and the relevant causal link”: Pointes Protection, at para. 71.
[79] Either monetary or non-monetary harm will suffice to establish the existence of harm. The harm need not be monetized or quantified. Reputational harm is also relevant to the harm inquiry even if at this stage it is not quantifiable. Defamation gives rise to a claim for general damages. The “preservation of one’s good reputation” has inherent value beyond the monetary value raised by the claim: Levant v. DeMelle, 2022 ONCA 79, at para. 18; Pointes Protection, at para. 88.
[80] While the presumption of damages flowing from defamation can establish the existence of harm, in order to succeed at the balancing stage, “a plaintiff must provide evidence that enables the judge ‘to draw an inference of likelihood’ of harm of a magnitude sufficient to outweigh the public interest in protecting the defendant’s expression”: Hansman, at para. 67, citing Pointes Protection, at para. 71 and Bent, at para. 154. Accordingly, it is necessary to consider the evidence of actual and potential harm that is available in the record: Bent, at para. 144. See also this court’s helpful discussion of the harm element of s. 137.1(4) in Park Lawn, at paras. 47-48.
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(ii) Public interest in protecting the appellants’ expression
[86] On the other side of the weighing exercise is the public interest in protecting the appellants’ expression. The term “public interest” is used differently in s. 137.1(4)(b) than in s. 137.1(3): Pointes Protection, at para. 74. 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) 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.
[87] 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. While “a statement that contains deliberate falsehoods” or “gratuitous personal attacks” may be an expression that relates to a matter of public interest, the public interest in protecting that expression will be less than would have been the case had the same message been delivered without lies or vitriol: Pointes Protection, at paras. 74-75.
[88] In Thorman, where the expression involved a customer’s negative online reviews that included allegations of fraud and other disparaging descriptions following a failed home renovation project, this court observed that “[t]here is a significant difference, on the one hand, between providing others with a descriptive account of the nature and quality of services one has received – including an explanation of the reasons one is dissatisfied – and, on the other hand, calling a contractor a “fraudster” and a “scammer” and calling on others to act in concert to drive the contractor out of business”: at para. 30. The court concluded that such expression deserved “very little protection”: at para. 30.
[89] In the present case, while the impugned expression “relates to” an issue that is of public interest – the potential exploitation of vulnerable workers – its quality and nature, and the motivation behind the expression, reduce its value. As in Thorman, the expression in question addressed a topic of public interest, but the imputation of personal criminality by the appellants and their supporters, and their motivation, reduce the public interest in its protection.
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(iii) Weighing of the public interest
[92] Having concluded that there is compelling and uncontroverted evidence of harm to the respondents resulting from the impugned statements, and that the public interest in protecting the appellants’ expression is significantly limited by the quality of and motivation for the expression, I turn to consider whether the respondents have established that, as a result of that harm, the public interest in allowing the Action to continue outweighs its deleterious effects on expression and public participation.
[93] Conducting the weighing under s. 137.1(4)(b) is an “open-ended” exercise. It 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.
[94] 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): 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 action, and minimal or nominal damages suffered by the plaintiff: Pointes Protection, at para. 78. As Côté J. noted in Pointes Protection, at para. 80, other factors may also be considered where they are 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.
[95] In the present case, the Action does not have the hallmarks of a SLAPP action. There is no history of the respondents having used litigation, or the threat of it, to silence their critics. Nor is there anything in the record that could support a suggestion that the respondents commenced the Action for a punitive or retributory purpose. The record suggests that the Action was a response to real harm, and not nominal or minimal damages. It was commenced only after the respondents’ counsel had attempted to dissuade the appellants from proceeding with their threatened actions, and only after the actions had occurred and were continuing. In other words, the Action appears to have been commenced to recover damages for real harm, and to forestall (by claiming injunctive relief) future harm.
[96] In my view, what is really going on in the present case is that, as a last resort, an Action was commenced after the respondents had attempted to prevent the expressions and conduct that was threatened, and which was intended to and did in fact cause harm to the respondents’ business and reputation. In other words, there was a valid reason for commencing the Action – to stop, and to obtain compensation for, the expressions that were made and in fact continued after the Action was commenced. As in Paul v. Madawaska Valley (Township), 2022 ONCA 444, at para. 17, the public interest in the appellants’ freedom of expression must be weighed against the respondents’ interest in protecting their reputations from being attacked without impunity.
[97] In weighing the public interest considerations, I am mindful of the real and threatened harm to the reputations of Cargo County and its principals, and the appellants’ unnecessarily disparaging and personal attacks against them. While there is value in workers protesting about unfair working conditions, I see no chilling effect on future expressions about such matters if the Action proceeds. As the Supreme Court in Pointes Protection stated, 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. Allowing the Action to proceed would not in my view deter others from speaking out against unfair labour practices; rather it would permit the respondents to seek redress for the harm alleged to have resulted from the manner and approach the appellants employed in this particular case.
[98] I am satisfied that the respondents have established on a balance of probabilities that the likelihood of harm suffered and likely to be suffered as a result of the appellants’ expression is sufficiently serious that the public interest in permitting the Action to continue outweighs the relatively modest public interest in protecting that expression. . 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 these quotes the court considers the SLAPP harm-expression balancing (or 'weighing') [CJA s.137.1(4)(b)], emphasizing the difference between 'weighing' and 'balancing' and the problem of 'incommensurability':(i) The nature of weighing
[68] The burden is on the plaintiff to establish under s. 137.1(4)(b) that the public interest in permitting a proceeding to continue outweighs the public interest in protecting the defendant’s expression. In Pointes, at para. 66, the Supreme Court sought to distinguish weighing from balancing, with Côté J. noting that in order for one thing to outweigh another, the ratio between them must be at least 51/49, whereas balancing would permit a lower ratio.
[69] This distinction suggests an empirical precision that is not possible where evaluations of the public interest are concerned. The problem is incommensurability: it is impossible to measure the public interest, and all that it entails in different contexts, on an objective basis. Specifically, in the context of s. 137.1(4)(b), there are no metrics for measuring the public interest in either permitting a proceeding to continue or in protecting particular expression, and this entails incommensurability between competing interests: see Timothy Endicott, “Proportionality and Incommensurability” in Grant Huscroft, Bradley W. Miller & Grégoire Webber, eds., Proportionality and the Rule of Law: Rights, Justification, Reasoning (New York: Cambridge University Press, 2014) 311.
[70] Incommensurability is by no means a problem unique to s. 137.1; it can inhere in any weighing exercise. Thus, to speak of weighing is to speak in terms of metaphor rather than accurately describe the evaluative process being used. We can choose to value one thing more than another, but there is often no common attribute that provides an objective basis for concluding that one has greater value than the other.
[71] Of course, there will be cases in which the outcome of the weighing exercise seems clear. The Anti-SLAPP Advisory Panel, whose report gave rise to s. 137.1, had this sort of case in mind when it made this point at para. 37 of its report: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. The value of public participation would make any remedy granted to the plaintiff an unwarranted incursion into the domain of protected expression. In such circumstances, the action may also be properly regarded as seeking an inappropriate expenditure of the public resources of the court system. Where these considerations clearly apply, the court should have the power to dismiss the action on this basis. [72] It seems uncontroversial to say that an interest that has little or no weight – a “technically valid” cause of action that causes “insignificant harm” – is outweighed by an interest in freedom of expression that is presumed to be very important. That is so because the price to be paid for protecting expression in these circumstances is minimal. In most cases, however, the weighing judgments that must be made under s. 137.1(4)(b) are more difficult and contentious, involving arguable claims of defamation with potentially significant, if undetermined, damages and contestable claims about the importance of the impugned expression. That is so in this case.
(ii) The public interest in permitting the appellant’s action to proceed
[73] The public interest in permitting the appellant’s action to proceed is to be determined having regard to the harm likely to have been suffered as a result of Evans-Bitten’s expression. What is that harm and how was it caused?
[74] Guidance is provided in Pointes, at para. 71, where Justice Côté emphasized that harm and causation are determined at an early stage in the proceedings and cannot be judged on an exacting standard:I would not go so far as to require a fully developed damages brief, nor would I require that the harm be monetized, as the question here relates to the existence of harm, not its quantification. The statutory language employed in s. 137.1(4)(b) is “harm likely to”, which modifies both “be” and “have been”; this indicates that the plaintiff need not prove harm or causation, but 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. [Emphasis in original.] [75] In short, all that is required is evidence permitting an inference of likelihood in respect of harm and causation. So, what is the evidence in this case?
[76] The starting point is general damages, which are presumed to follow from defamatory expression. The presumption of such damages does not establish their magnitude: Hansman, at para. 67. But reputational harm is a relevant consideration in determining whether, along with monetary damages pleaded, the harm is sufficiently serious. In Bent, at para. 148, the Supreme Court emphasized the importance of professional reputation, even when it is not quantifiable at an early stage in the proceedings, noting that harm to position and standing in a professional community may have the effect of exacerbating the harm suffered.
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(iii) The public interest in protecting the respondent Evans-Bitten’s expression
[81] The public interest in protecting Evans-Bitten’s expression requires consideration not only of the quality of that expression but the motivation behind it: Pointes, at para. 74. At para. 80, the Supreme Court outlined a number of considerations that may be relevant in determining the public interest in protecting particular expression:For example, the following factors, in no particular order of importance, may be relevant for the motion judge to consider: the importance of the expression, the history of litigation between the parties, broader or collateral effects on other expressions on matters of public interest, the potential chilling effect on future expression either by a party or by others, the defendant’s history of activism or advocacy in the public interest, any disproportion between the resources being used in the lawsuit and the harm caused or the expected damages award, and the possibility that the expression or the claim might provoke hostility against an identifiably vulnerable group or a group protected under s. 15 of the Charter or human rights legislation. [Emphasis in original.] [82] The traditional indicia of a SLAPP suit – a history of litigation or the threat of litigation being used to silence critics; a financial or power imbalance that strongly favours the plaintiff; a punitive or retributory purpose that motivates the plaintiff’s claim; and minimal or nominal damages suffered by the plaintiff – may also be relevant, provided that they are tethered to the text of s. 137.1(4)(b). That is, provided that they are not treated as determinative and are considered in the weighing analysis the section prescribes: The Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 381, at para. 111.
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