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Torts - SLAPP - Harm-Expression Balancing (5). Hamer v. Jane Doe
In Hamer v. Jane Doe (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a successful SLAPP CJA s.137.1 motion.
Here the court considers the harm-expression balancing [under CJA s.137.1(4)(b)]:(c) Subsection 137.1(4)(b): the weighing exercise
(i) Correct Analysis
[93] Section 137.1(4)(b) is the public interest weighing stage, which is the “crux of the analysis”, where the focus is on “what is really going on” in this case: Pointes, at paras. 18, 30 and 81. The final weighing exercise requires the “structured evaluation” of the competing values of the public interest in allowing a legitimate action to continue to redress harm caused by the moving party’s actions against the public interest in the moving party’s expression.: 40 Days for Life, at para. 93. As this court noted in Mondal, at para. 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. [94] The burden on the responding party with respect to the alleged harm was recently described by this court in Marcellin, at para. 11: “The responding party 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 harm and the relevant causal link” (emphasis in original). In Thorman, at paras. 11, 12, this court further explained that “[h]arm need not be ‘monetized’” and that a “'definitive determination of harm or causation’ is not required.” Instead, in order to succeed on the weighing exercise, the [responding party] “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 [moving party’s] expression”: Hansman, at para. 67. Neither reputational harm nor monetary harm is more important than the other. Nor is harm synonymous with the damages alleged: Subway Franchise Systems of Canada, Inc., at para. 85.
[95] While no definitive determination of harm or causation is required, it is insufficient to rely on “[p]resumed general damages” or “bare assertions of harm”: Hansman, at para. 67. That said, “there is no threshold requirement for the harm to be sufficiently worthy of consideration…the magnitude of the harm simply adds weight to one side of the weighing exercise”: Pointes, at para. 70.
[96] Unlike the threshold analysis, where the question was simply whether the expression was related to a matter of public interest, at this stage, it is necessary to evaluate the expression's quality and the motivation behind it: Pointes, at para. 74. As this court explained in Thorman, at para. 14:The weighing analysis looks to the fundamental values underlying freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms, such as “the search for truth, participation in political decision making, and diversity informs of self-fulfillment and human flourishing, because ‘[t]he closer the expression is to any of these core values, the greater the public interest in protecting it’”. [97] To the extent the expression moves away from any of these core values, the public interest in protecting it diminishes. Defamatory statements and personal attacks are only “tenuously related to the core values which underlie s. 2(b) of the Charter” and therefore “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”: Buttar, at para. 87, Bent, at para. 163, Pointes, at paras. 74, 75; Thorman, at para. 15.
[98] In 40 Days for Life, at para. 82, this court reiterated the correct approach in evaluating the quality of the expression:The Supreme Court cautioned in Pointes that "judges should be wary of the inquiry descending into a moralistic taste test", and instead instructed that the evaluation of the expression under s. 137.1(4)(b) should be guided by principles at the core of freedom of expression and other principles that underlie a free and democratic society: at paras. 76-77. This instruction should not be read as presupposing that moral evaluation is either unreasoned or lacking objectivity. Rather, it should be taken as an admonition to judges not to be quick to enter the fray on matters of moral controversy, and instead, for the purposes of this analysis, judges should disvalue only those expressions that would undermine or corrupt the core principles underlying the freedom of expression. [99] 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, 80.
[100] In discussing factors that may bear on the public interest weighing exercise under s. 137.1(4)(b), at para. 79 of Pointes, Côté J. instructed that:[T]he only factors that might be relevant in guiding that weighing exercise are those tethered to the text of s. 137.1(4)(b), which calls for a consideration of: the harm suffered or potentially suffered by the plaintiff, the corresponding public interest in allowing the underlying proceeding to continue, and the public interest in protecting the underlying expression. [101] While providing guidance on some of the relevant factors that may inform the analysis, Côté J. reminded that the "open-ended nature of s. 137.1(4)(b) provides courts with the ability to scrutinize what is really going on" and that s. 137.1(4)(b) "effectively allows 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.
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[104] As already noted, the appellants’ burden under s. 137.1(4)(b) is not “to establish harm caused by the expression”; rather, it is to “provide evidence for the motion judge to draw an inference of likelihood in respect of the existence of harm and the relevant causal link”: Marcellin, at para. 11. The question is whether the appellants have met their onus to establish that the harm likely to be or that has been suffered by them as a result of the respondents’ expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression: Levant, at para. 71.
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[111] Specifically, with respect to the question of the psychological and concomitant physical harm described by Ms. Hamer in her affidavit, we note that the Supreme Court in Bent did not require as part of the analytical framework that medical or other corroborating evidence be produced at the preliminary assessment stage for this kind of alleged harm but instructed, at para. 149, that these “intangible and subjective elements” should “factor into the assessment of the harm suffered by a plaintiff” and confirmed that “’injured feelings or the psychological impact’ of defamation are relevant to the assessment of damages”, with the reminder that “for the purposes of s. 137.1(4)(b), harm need not be monetized, as both ‘monetary harm or non-monetary harm can be relevant to demonstrating’ the existence of harm”, citing to Pointes, at paras. 68-71.
[112] .... A consideration of the state of the appellants’ reputation was a necessary step in order to conduct a proper weighing under s. 137.1(4)(b): Levant, at para. 52; Subway Franchise Systems of Canada, Inc., at para. 96.
[113] In Bent, at para. 146, Côté J. emphasized that "reputational harm is eminently relevant to the harm inquiry under s. 137.1(4)(b)" and that the Supreme Court's jurisprudence "has repeatedly emphasized the weighty importance that reputation ought to be given", because "reputation is one of the most valuable assets a person or a business can possess": see also Pointes, at para. 69. Moreover, she noted in Bent, at para. 147, that the "import of reputation is only amplified when one considers professional reputation” (emphasis in original). As a result, she concluded, the harm analysis requires the consideration of not only the pleaded monetary harm, but also the harm to a plaintiff's reputation, "even if it is not quantifiable at this stage", noting that "the damaging effects that a defamatory remark may have on a plaintiff's ‘position and standing’ in the professional community exacerbate the harm suffered as a result": Bent, at para. 148; Pointes, at para. 71; Thorman, at para. 24.
[114] The harm analysis did not require the appellants to definitively quantify or prove their actual damages on this threshold motion, particularly because this case involves alleged reputational damages caused by very serious allegations of animal cruelty and disreputable dealings. The motion judge failed to acknowledge that general damages for defamation do not have to be proven. Importantly, as a result of her mischaracterization of the sting of the defamation, the motion judge failed to consider that the respondents’ very serious allegations against the appellants were potentially very harmful to the appellants' professional reputations. See: Thorman, at para. 23.
[115] The weighing exercise also requires an examination of the quality of the impugned statements. Rather than analyzing, as the motion judge was required to do, how close the impugned statements were to core Charter values, she focussed instead on the engagement of the respondents in animal welfare volunteer work and their participation in online activities related to animal welfare and rescue. Her observations concerning the validity of the respondents’ activities may have been relevant for her consideration of the defence of responsible communication, but they do not reflect on the quality of the impugned statements. Without this assessment, she could not determine whether the public interest in the protection of the impugned statements outweighed the harm to the appellants.
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[118] I am not persuaded by the respondents’ submission that when the few inflammatory portions of Ms. Melo’s posts are considered in the broader context of animal welfare concerns, the public interest in the expression outweighs the harm to the appellants.
[119] The broader context is undoubtedly important for understanding the meaning of an expression; however, whatever good one ultimately hopes to achieve cannot be used to justify an expression that is untrue, not fair comment and could support a finding of malice, nor can it elevate the value of the expression: 40 Days for Life, at para. 76.
[120] Further, the sting of the impugned expression was unnecessary to convey the animal welfare message. Ms. Melo and the respondents could have expressed their concerns about the appellants’ activities without resort to the extreme and defamatory language that was used in the impugned statements. There is a significant difference between, on the one hand, providing others with a descriptive account of the animal welfare concerns with the appellants’ activities, and on the other hand, calling Ms. Hamer a mentally unstable cat hoarder who harms or kills cats in the appellants’ care: See: Thorman, at para. 30. Ms. Melo’s posts subsequent to the March 19 post were unnecessary and gratuitous: she indicated that the police had been contacted to investigate her allegations. At that point, the utility of and public interest in allowing the further posts is questionable.
[121] Accordingly, I conclude that when considered as a whole, the impugned statements are worthy of little protection as an expression of animal welfare concerns.
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