Fridays With Rogers Partners

At our weekly meeting, Chris MacDonald discussed a decision of the Ontario Court of Appeal, Zoutman v. Graham, 2020 ONCA 767.

In this case, the Court of Appeal heard an appeal brought by Mr. James Graham. The appellant appealed a judgment dismissing his motion under section 137.1 of the Courts of Justice Act, commonly referred to as an “anti-SLAPP” (Strategic Lawsuit Against Public Participation) motion,and granting summary judgment in the amount of $50,000 in favour of the respondent physician, Dr. Dick Zoutman.

Facts

Prior to the commencement of this action, Mr. Graham’s brother tragically died following a medical operation. Mr. Graham, his brother’s estate and other family members sued the attending physician, among others. At the trial of the clinical negligence action, Dr. Zoutman was called by the defendants and gave expert testimony on causation.

The jury dismissed the action and found that while the attending physician had not met the applicable standard of care, the plaintiff had failed to establish causation.

Mr. Zoutman alleged both during and after this clinical negligence action, Mr. Graham posted ten derogatory comments on RateMDs.com and two other commends on another website about Dr. Zoutman. Mr. Graham refused Dr. Zoutman’s requests to remove the postings.

In 2015, Dr. Zoutman commenced an action against Mr. Graham and RateMDs.com for defamation. The claim against RateMDs.com was discontinued shortly thereafter.

In 2018, Dr. Zoutman served a notice of motion for summary judgment. Several months later, Mr. Graham brought an anti-SLAPP motion under section 137.1 of the Courts of Justice Act (CJA). The anti-SLAPP motion and the summary judgment were later ordered to be heard together.

Section 137.1 of the CJA sets out a procedure wherein defendants may move early in the litigation process for an order dismissing claims arising out of expressions by defendants on matters of public interest. To succeed in an anti-SLAPP motion, section 137.1(3) requires the moving party to establish:

1. that the proceedings arose from an expression made by him or her; and,
2. that expression relates to a matter of public interest.

If those requirements are met, the responding party bears the onus under section 137.(4) to establish:

1. that the proceeding has substantial merit; and,
2. that the defendant has no valid defence.

Decision of the Motion Judge

The motion judge dismissed Mr. Graham’s anti-SLAPP motion. While the judge acknowledged that the passage of time alone should not disentitle Mr. Graham from relief, in this case the delay in bringing the motion was fatal. The Court of Appeal has previously held that an anti-SLAPP motion is intended to be brought at an early stage of the proceeding. Here, the delay in bringing the motion subverted the intent and purpose of section 137.1.

The motion judge nevertheless considered the merits of the appellant’s motion and concluded that Mr. Graham had not satisfied the Court that the proceedings arose from an expression made by the appellant, or that the expressions related to a matter of public interest as required under section 137.1(3). As Mr. Graham did not acknowledge that 10 of the 12 postings were authored by him, the Court held that he could not advance any viable anti-SLAPP argument as to the other impugned posts.

Even if the requirements under section 137.1(3) were met, the Court held that Dr. Zoutman had established that the harm suffered was sufficiently serious such that the public interest in permitting the proceeding to continue outweighed any public interest in protecting the expressions under section 137.1(4).

The judge also held that Mr. Graham could not rely on the defence of fair comment or any other defence. Even if each the defence of fair comment was established, Dr. Zoutman had shown that the defendant was actuated by malice – a full answer to the fair comment defence.  

The motion judge granted the Dr. Zoutman’s motion for summary judgment, and concluded that Mr. Graham had in fact authored all 12 defamatory posts. Dr. Zoutman was awarded $50,000 in general and aggravated damages, a permanent injunction preventing Mr. Graham from disseminating defamatory content about him, and $50,000 in costs.

Issues on Appeal

1. Did the motion judge err in dismissing the appellant’s anti-SLAPP motion under s. 137.1 of the CJA?
2. Did the motion judge err in granting summary judgment to the respondent?

Decision

The Court of Appeal dismissed the appeal and ordered the appellant to pay the respondent $16,000 in costs.

Reasoning

1. Did the motion judge err in dismissing the appellant’s anti-SLAPP motion under s. 137.1 of the CJA?

The Court of Appeal held that the motion judge correctly dismissed the appellant’s motion under s. 137.1

The Court rejected the appellant’s argument that the motion judge did not have jurisdiction to rule on the summary judgment motion once he had brought his anti-SLAPP motion. It held that because the motion was brought months after the respondent’s summary judgment motion, and the motions were set to be heard at the same time, which the appellant did not appeal, it was open to the motion judge to decline relief under s. 137.1 on the basis of the timing of the motion.   

The Court agreed with the motion judge’s conclusion that the anti-SLAPP motion could not result in the dismissal of the respondent’s entire action, as the appellant had only admitted to two of the 12 postings in question. Therefore, the appellant could not advance any viable anti-SLAPP argument as to the other impugned posts.

Finally, the Court accepted the motion judge’s finding that the respondent’s proceeding had substantial merit and the appellant had offered no valid defence.

2. Did the motion judge err in granting summary judgment to the respondent?

The Court saw no palpable and overriding error in the motion judge’s finding that Mr. Graham was the author of all 12 of the defamatory postings.

The Court did not disturb the motion judge’s finding that the three elements of defamation were established, in particular: (a) the defendant made a defamatory statement, (b) the words referred to the plaintiff, and (c) that the words were communicated to at least one person other than the plaintiff.

While the appellant maintained that element (c) was not made out due to a lack of evidence that other individuals read the posts, the Court disagreed and upheld the motion judge’s finding that there was evidence to infer that this element was met.