For years, Ontario was the go-to place for people looking to sue their critics into silence. The province had among the toughest libel laws in the developed world. The onus was on the critic to prove what they’d written was true — not on the plaintiff to prove it wasn’t. And since the courts were notoriously slow and expensive, the process was the punishment.
Until 2015, when Ontario adopted legislation to reduce their effectiveness, SLAPP (strategic litigation against public participation) lawsuits were a reliable weapon in the corporate arsenal — especially for resource companies and land developers. They were also a favourite of politicians during election campaigns.
This month the Ontario Court of Justice will hear an anti-SLAPP motion — through which judges can dismiss frivolous libel suits in short order — filed by Robert Day, a blogger who writes under the name Canadian Cynic. He’s being sued by Ezra Levant after criticizing Levant’s fundraising effort for victims of the 2016 Fort McMurray wildfire (which Day called a tax write-off scam of “unadulterated sleaziness”). The motion will, for the first time, test the province’s anti-SLAPP laws as they apply to libel on social media. Its outcome may help establish Ontario as a place where free expression is valued more than hurt feelings or bruised egos.
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Of course, SLAPP suits do more than stifle the free expression of those hit with them. They also intimidate people who, in the absence of such legal threats, might have written a newspaper article or an internet post, spoken at a public meeting, posted a sign on their property, or taken part in a protest. They’re a direct threat to democracy.
That’s why 28 U.S. states and the District of Columbia have anti-SLAPP laws. Yet Canada lags behind. Since 2001, assorted opposition members of the Nova Scotia legislature have tried to push through an anti-SLAPP law, without success. British Columbia’s Protection of Public Participation Act, which into force in April 2001, was Canada’s first anti-SLAPP suit law. The B.C. Liberals were elected a few months later and immediately repealed it.
In fall 2015, the Queen’s Park passed the Protection of Public Participation Act, which poses three questions: Does the lawsuit pertain to a matter of public interest? Does the plaintiff’s case have substantial merit? And is the harm the plaintiff has suffered (or is likely to suffer) serious enough to justify stopping public expression?
Judges can throw out a SLAPP suit via a motion process that usually takes place early in the litigation process. They can also hit SLAPPers with punitive costs. In fact, litigants caught using lawfare to silence critics must pay their targets’ entire legal bill. These “full indemnity costs” are rare in other kinds of lawsuits.
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The law showed its teeth in the 2016 case Platnick vs. Bent. Trial lawyer Maia Bent, who was then president-elect of the Ontario Trial Lawyers Association, criticized physician Howard Platnick on a private Listserv for the way he drafted expert witness reports in personal injury cases. The posts were shared across the GTA legal community, and Platnick sued, claiming Bent’s criticism had ruined his practice.
Ontario Superior Court justice Sean Dunphy found Bent’s post pertained to a matter of public interest, and that her defences would likely succeed if there were a trial. Platnick’s lawyer, Tim Danson, was quoted saying the anti-SLAPP process gave him just 60 days to review more than 10,000 documents Bent had disclosed in the case. He asked for reduced costs, urging the award to Bent be limited to $45,000. But the judge, citing the statute’s wording, said he was required to award the full indemnity costs: $282,943.42.
In another case, involving the Pointes Protection Association, a Sault Ste. Marie environmental group opposed to a planned waterfront subdivision, the defendants lost because they had broken a settlement agreement they’d made with the developer not to be a party at the OMB hearing for the development application. Otherwise, the judge said, the group would have won. The PPA wasn’t hit with punitive costs, since the law was designed to favour defendants who claim they’re being SLAPPed. (Those who drafted the law wanted cases dealt with quickly; as a result, defendants can make SLAPP motions mostly without risk.)
The Day-Levant lawsuit will be the first social-media libel case to go through Ontario’s anti-SLAPP motion process. The outcome may indicate how much leeway the courts give online critics — and whether or not judges will be inclined to throw out meritless cyber libel suits intended only to stifle legitimate criticism.
Mark Bourrie is a journalist, author, and recent law-school graduate. He is also this year’s Canadian Journalists for Free Expression Carty Fellow.