Fridays With Rogers Partners

This morning, at our weekly firm meeting, Matthew Umbrio addressed the Ontario Court of Appeal decision of Nanda v. McEwan, 2020 ONCA 431. The appeal was brought by the moving party/defendants from an order made under s.137.1 of the Courts of Justice Act dismissing an “anti-SLAPP” motion.

The action was commenced by a union member who ran an unsuccessful campaign for election as the President of the Toronto Local of the Canadian Union of Postal Workers (CUPW). The defendants then brought the anti-SLAPP motion as a means to dismiss the defamation claim.

The appellants (the defendants in the action) are members of the CUPW. The respondent (the plaintiff) was involved in a leadership capacity for 21 years, then a member of the executive of the Ontario Federation of Labour, who then ran for election to become the President of the Toronto Local of the CUPW.

The respondent alleged that during the election campaign, the appellants made defamatory statements about him in two invitation only WhatsApp chat groups and in posters or flyers that had been distributed to members during the election. In total, it was estimated about 200 people received the impugned expressions.

The statements shared by the appellants included allegations that the respondent was a racist, a sexist, a  bigot, a bully, a thief, was corrupt, had rigged a union election, had stolen from membership, had abused his position of trust, had used union funds to buy votes, and had engaged in a criminal conspiracy.

The action was originally brought in Small Claims Court, where it was dismissed by a deputy judge based on the failure of the respondent to give notice under the Libel and Slander Act.

The Divisional Court, on appeal, held that there was no evidence before the deputy judge to permit a conclusion that the WhatsApp statements constituted a broadcast under the Libel and Slander Act, which would have required notice. Instead of remitting the action to Small Claims Court, however, the Divisional Court agreed to hear the anti-SLAPP motion.

The motion judge at the Divisional Court ultimately dismissed the motion, holding that the impugned expressions did not relate to a matter of public interest, and, even if they did, the public interest did not weigh in favour of protecting the impugned expressions at the expense of dismissing the defamation action.

The motion judge had found that the appellants failed to meet the threshold requirement in s.137.1(3), as they failed to show that the expressions related to the public interest. It was held that the purpose and context of the statements were to make disparaging, inflammatory, and allegedly defamatory comments about the plaintiff to influence the election.

The motion judge also held that the election of a union official is not a matter of public interest as this was a private matter.

On appeal, the Court of Appeal held that the motion judge erred in his interpretation of the threshold requirement, but that the ultimate decision to dismiss the motion was correct.

The Court of Appeal first outlined the relevant test for an anti-SLAPP motion. First, the defendant/moving party must establish on a  balance of probabilities that the expression relates to a matter of public interest. This step requires a broad reading and does not require the expression to actually further the public interest.

The burden then shifts to the plaintiff to establish that there are grounds to believe that the proceeding has substantial merit and that the defendant has no valid defence.

Further, the plaintiff must show that the harm suffered by the plaintiff is causally connected to the expression and is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

The Court of Appeal held that the motion judge mischaracterized the public interest threshold requirement. The question to be asked is “what is the expression about, or what does it pertain to?”. In this case, the expression could properly be characterized as “about allegations of corruption and misconduct by a candidate for the office of President of the Toronto Local of the Canadian Union of Postal Workers”.

It was held that the expressions concerning racism, sexism, corruption, and misconduct for a president of a public sector union relate to a matter of public interest. The Court of Appeal also further reinforced previous decisions that stated that expressions including derogatory, malicious, and false statements do not preclude a finding that the expressions relate to a matter of public interest.

Next, the Court of Appeal reviewed the merits-based step of the test. The appellants had not made submissions on the merits of the claim before the motion judge, but claimed that they were entitled to the defences of justification, fair comment, absolute and/or qualified privilege, and public interest communications. Only one appellant had filed any material to support these defences, but the Court of Appeal found the material to be insufficient.

Finally, the Court of Appeal undertook the balancing exercise in determining whether the public interest favored protecting the impugned expressions or allowing the action to proceed. The Court of Appeal held that the motion judge was correct on his analysis at this stage of the test, finding that the expressions at issue, the merits, and the public interest in the context of a union election did not outweigh the public interest in permitting the action to proceed.

As a result, the appeal was dismissed and the defamation action was allowed to proceed.