Weighing the Public Interest on Anti-SLAPP Motions

September 13, 2023

By Emmanuel Couture-Tremblay

The recent decision of the Ontario Superior Court of Justice in Armstrong v. Farahi, 2023 ONSC 5069 dealt with a motion to dismiss a defamation action as an impermissible SLAPP (Strategic Lawsuits Against Public Participation) lawsuit.

Facts

In this case, the defendant Amir Farahi wrote a Column in London newspaper Our London on February 2, 2017 about then-London City Councillor William Armstrong. In this article, Farahi raised questions about Armstrong’s approach to conflicts of interest due to Armstrong voting in favour of constructing the East London Community Centre in East Lions Park “despite owning a rental property at a location that puts him in the notification zone” for the proposed building site. Armstrong served a libel notice to the newspaper, which led the newspaper to subsequently publish a correction and apology to Armstrong.

Armstrong issued a statement of claim for defamation in the amount of $250,000 against Farahi, the newspaper, and the newspaper’s owner. The defendants brought a motion for an order dismissing the defamation action as an impermissible SLAPP lawsuit.

Analysis

Section 137.1 of the Courts of Justice Act (“CJA”) aims to prevent SLAPP lawsuits that unduly limit freedom of expression on matters of public interest.

Under the s. 137.1 analysis, the defendant first bears the burden to satisfy the court that the proceeding arises from an expression made by the defendant, and that the said expression relates to a matter of public interest. If the defendant fails to discharge its burden, the motion is dismissed.

However, if the defendant meets this threshold, the burden then shifts to the plaintiff to satisfy the test under s. 137.1(4) of the CJA, that:

  1. There are grounds to believe that the proceeding has substantial merit;
  2. There are grounds to believe that there is no valid defence(s) to the claims; and
  3. The harm suffered by the plaintiff as a result of the defendants’ expression is sufficiently serious that the public interest in permitting the plaintiff’s action to proceed outweighs the public interest in protecting the defendants’ expression.

Does the action arise from an expression relating to a matter of public interest?

To satisfy the threshold burden, the moving party must show on a balance of probabilities that the proceeding arises from an expression made by the moving party, and that the expression relates to a matter of public interest (1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 [“Pointes”]).

Armstrong conceded that the Column is an expression relating to a matter of public interest, satisfying the defendants’ threshold question.

Are there grounds to believe that this proceeding has substantial merit?

To satisfy this burden, the plaintiff must show that the defamation action has a “real prospect of success” and must be “legally tenable and supported by evidence that is reasonably capable of belief” (Pointes, at para. 49).

To do so, the plaintiff must establish three elements:

  1. The words complained of were published, meaning that they were communicated to at least one person other than the plaintiff;
  2. The words complained of referred to the plaintiff; and
  3. The impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person.

The defendants conceded the first two elements of the test. Justice Cook found that the third element was also established, drawing on the decision in Roshard v. St. Dennis, 2013 BCSC 1388, at para. 26, wherein an allegation of a public official acting within a conflict of interest was found to be damaging and actionable in defamation.

Are there grounds to believe that the defendants have no valid defence?

To satisfy the second part of the merits hurdle, the plaintiff must show that “there are grounds to believe that the defences have no real prospect of success.” (Pointes, at para. 59). The defences raised were that of fair comment and responsible communication.

Malice

The plaintiff argued that both defences raised must fail because the publication was malicious. However, Justice Cook did not accept that the Column was so reckless that it could amount to malice. In Botiuk v. Toronto Free Press, 1995 CanLII 60 (SCC), [1995] 3 S.C.R. 3, at pp. 34-35, the Court held that malicious conduct is not established merely by relying “solely on gossip and suspicion”.

Justice Cook pointed out that Farahi wrote only one article on Armstrong, though he wrote about municipal issues over the course of four years at Our London. Thus, Armstrong did not establish that the defences failed on the ground of malice.

Fair Comment on a Matter of Public Interest

Armstrong conceded that the Column amounted to expression on a matter of public interest, thereby shifting the onus of the plaintiff to show grounds to believe that the defendants cannot establish an element of the defence such that the defence has no real prospect of success.

Was the Expression Recognizable as a Comment?

A fair comment must be one that would be understood by a reasonable reader as a comment, rather than a statement of fact. Justice Cook was satisfied that Armstrong had established grounds to believe that the defendants could not establish that the Column was recognizable as a comment.

The defendants themselves granted that the Column may not be recognized as opinion, going so far as seeking Armstrong’s comment prior to publication. Therefore, the defence of fair comment is not available, on the basis that the Column was not recognizable as opinion.

Responsible Communication on a Matter of Public Interest

The defence of responsible communication on matters of public interest requires the defendants to prove that:

  1. the publication was on a matter of public interest; and
  2. the publication was responsible in that the defendants were diligent in trying to verify the allegations made.

With the first element already satisfied, the judge needed to assess the adequacy of the publisher’s diligence. Justice Cook found that the defendants were not reasonably diligent in verifying the fundamental facts in the Column and post-publication conduct was not considered as relevant in assessing the adequacy of the due diligence. Thus, the defence of responsible communication was unavailable in the circumstances.

Does the public interest in permitting the proceeding to continue outweigh the public interest in protecting the expression?

Section 137.1(4)(b) of the CJA requires the plaintiff to prove on a balance of probabilities that, due to the harm likely to have been or to be suffered by him as a result of the Column, “the public interest in allowing the underlying proceeding to continue outweighs the deleterious effects on expression and public participation” (Pointes, at para. 82).

Harm Analysis

The harm analysis involves consideration of the harm suffered or likely to be suffered by the plaintiff as a consequence of the defendant’s expression. The presumption of damages in defamation is itself sufficient to demonstrate the existence of harm caused by the expression. Accordingly, the harm analysis was satisfied.

Weighing Analysis

The weighing exercise requires the court to consider “what is really going on in the case” with a view to striking the appropriate balance between the protection of individual reputation and freedom of expression, the competing values at the heart of anti-SLAPP legislation (Pointes, at para. 81).

Justice Cook found that Armstrong had not discharged his burden of demonstrating that the harm he suffered is sufficiently serious that the public interest in letting him proceed with this action outweighs the public interest in protecting the political expression involved.

This case bore hallmarks of an impermissible SLAPP lawsuit:

  • This action is the plaintiff’s second defamation case involving expressions on matters of public importance, with the first action being dismissed by the Court of Appeal as an impermissible SLAPP lawsuit;
  • The plaintiff issued his claim in April 2017 but did not serve it until late 2017, potentially for the strategic purpose of intimidating Farahi during the election cycle; and
  • The plaintiff did not present evidence of substantial damages suffered as a result of the Column.

Armstrong failed to satisfy the Court that the harm that he suffered due to the Column was sufficiently serious that the action should be permitted to proceed.

Conclusion

Motion allowed, and action dismissed.

Takeaways

Despite the low evidentiary bar in anti-SLAPP motions, it is potentially crucial for the plaintiff to present evidence of harm suffered if one is to be successful in showing that the public interest in permitting the proceeding to continue outweighs the public interest in protecting expression. Further, the plaintiff’s history of previous defamation actions and the use of SLAPP lawsuits as strategic tools to intimidate could negatively affect the outcome of future SLAPP lawsuits.