Month: July 2017

In an important decision by Justice Lederer released on July 25, 2017, the Court not only dismissed the plaintiff’s claim in defamation, but it also awarded $7,500 in damages against the plaintiff for having filed the claim in the first place.

The United Soils v. Mohammed decision is noteworthy because it is the first Anti-SLAPP motion under the relatively new s. 137.1 of the Courts of Justice Act to result in damages against the plaintiff. The decision can be read here: http://canadianlawyermag.com/legalfeeds/images/stories/United-Soils-v-Mohammed_2nd-decision.pdf.

In the United Soils decision, the defendant Ms. Mohammed posted comments on Facebook with respect to a decision by her local municipal council amending an agreement with United Soils which operates a gravel pit. The amendment allowed United Soils to deposit acceptable fill from small quantity source sites and hydro-excavation trucks. Several tweets from councillors and the mayor came to Ms. Mohammed’s attention expressing concerns about the risks posed by what these trucks might deposit in the site. Worried about contamination, Ms. Mohammed posted comments about the company and the issue on Facebook. United Soils sent a letter from their lawyer threatening a defamation suit against Ms. Mohammed for her posts on Facebook. Ms. Mohammed did what the lawyer’s letter asked her to do by posting a message on Facebook retracting and apologizing for each prior postings. United Soils sued her anyway.

Ms. Mohammed retained a lawyer and brought a motion under s. 137.1 of the Courts of Justice Act, which is commonly referred to as the Anti-SLAPP provisions. These provisions, enacted in 2015, allow a defendant sued for defamation to bring a motion at an early stage in the lawsuit to attempt to have the action dismissed on the basis that it is a strategic lawsuit against public participation (SLAPP). If the Court finds that the publication dealt with a matter of public interest, the plaintiff must then show that the action has substantial merit, that the defendant has no valid defence and the harm suffered by the plaintiff is sufficiently serious that the public interest in permitting the lawsuit to continue outweighs the public interest in protecting that expression.

In this case, the Court found that the posts made by Ms. Mohammed were in the public interest (which was conceded by United Soils). The Court then found that the action in defamation did not have substantial merit. While Ms. Mohammed’s use of words could have been more carefully considered, the judge was not satisfied that the case had substantial merit. More importantly, the Court spent some time on the fact that Ms. Mohammed apologized. United Soils seemed to question whether Ms. Mohammed really meant her apology when she made it. The Court pointed out that apologies can be made for a variety of reasons, but there is no legal liability for what people may think. The Court concluded as follows at par. 40:

(…) Absent a retraction there is nothing to be gained by proceeding. Katie Mohammed has apologized. There is no continuing harm. The proceeding is not only without “substantial merit”. There is no merit. What Katie Mohammed may or may not continue to think does not change that conclusion.

The Court then analyzed Ms. Mohammed’s defences and found that she had a valid defence to the claim. It also found that the balancing of interests favoured the protection of freedom of expression as opposed to allowing the lawsuit to continue. The defamation action was therefore dismissed.

Most importantly, however, Justice Lederer went on to consider the defendant’s request that United Soils not only pay her legal costs for the action, but also pay her damages for having brought the claim in the first place. This is an interesting feature of the relatively new sections of the Courts of Justice Act which allow the Court to award damages against a plaintiff for filing a claim that is dismissed as a SLAPP suit. Other successful defendants have requested damages, but this is the first reported case in which damages were actually awarded. While the legislation does not provide guidance on how these damages are calculated and what considerations are to be taken into account, Justice Lederer considered the conduct of the plaintiff in this case and the multiple motions that had already taken place and concluded that they established an improper purpose by United Soils in bringing the claim against Ms. Mohammed. The Court considered the damages awarded in Jones v. Tsige for breach of privacy (intrusion upon seclusion) and compared the stress caused by the lawsuit to Ms. Mohammed with the damages awarded in the Jones case. In the end, Justice Lederer awarded Ms. Mohammed $7,500 in damages for the unnecessary stress caused by the lawsuit and the impact on her day-to-day life.

This decision will undoubtedly be used as a precedent by other defendants arguing that the defamation suits filed against them are designed to stifle public participation and were filed for improper motives. It will be interesting to see if the damages awarded in this case will set the bar for future decisions, and whether the analysis employed by Justice Lederer to award the damages will be followed.

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By Jeff Saikaley

The Ontario Court of Appeal confirmed in a recently released decision (http://www.ontariocourts.ca/decisions/2017/2017ONCA0579.htm) that there is no distinction between the print edition and the online version of a newspaper article for the purposes of s. 5(1) of the Libel and Slander Act.

In the John v. Ballingall case, the plaintiff (a rapper who performs under the name of Avalanche the Architect), sued the Toronto Star over an article that he claimed was defamatory and that appeared on the Star’s website on December 4, 2013 and in the print edition on December 9, 2013. His claim was struck on the basis that he did not provide a Notice of Libel in accordance with s. 5(1) of the Libel and Slander Act which provides:

No action for libel in a newspaper or in a broadcast lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given to the defendant notice in writing, specifying the matter complained of, which shall be served in the same manner as a statement of claim or by delivering it to a grown-up person at the chief office of the defendant.

On appeal, the plaintiff argued that a Notice of Libel was not required as the article was not published in a ‘newspaper’, but rather on the Internet. Because it was not printed on physical paper, the notice requirement in the Act should not apply. The Ontario Court of Appeal disagreed. The Court held as follows:

[25]        The regime in the LSA provides timely opportunity for the publisher to address alleged libellous statements with an appropriate response that could be a correction, retraction, or apology. Now that newspapers are published and read online, it would be absurd to provide different regimes for print and online versions.

Given that the Act applied and the requirements of s. 5(1) of the Act were not complied with, the appeal was dismissed, confirming the decision to strike the action:

[38]        In addition to the appellant’s failure to comply with the six-week notice period, the three-month limitation period similarly expired long before the appellant issued his statement of claim, sixteen months later.

The takeaway is therefore to ensure that any attempt to sue for an article published online comply with s. 5(1) of the Libel and Slander Act by providing a Notice of Libel within six (6) weeks of the date of publication and commencing an action within three (3) months. Otherwise, the action may be dismissed early on.

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