Qualified Privilege – What is Genuine Public Interest
In Diverse Transportation v. Chen, 2025 ONSC 554, the Court analyzed the screening function of an anti-SLAPP motion in the context of what issues can be constituted to be in the public’s interest. At issue was whether the public had any interest in a monetary dispute between a former employee and employer, wherein the employee delivered a message that in effect stated “pay me or I’ll destroy your reputation”.
Facts
The defendant, Mr. Chen, was a truck driver and former employee of the plaintiff, Diverse Transportation (“Diverse”), a trucking company that transports cargo in tanker trucks.
Mr. Chen claimed that he was fired from Diverse, while Diverse claimed that he quit. Mr. Chen obtained default judgment and a garnishment order against Diverse, who ultimately paid Mr. Chen on an economic basis. However, Mr. Chen claimed that Diverse still owed him interest and vacation pay.
In an effort to collect money that he believed was owed, Mr. Chen accused Diverse of a number of wrongful business practices and advised that he would publish the information if he was not paid. He threatened that he would contact Diverse’s customers directly to advise them of their alleged misdeeds (which included fraud and a lack of sanitary practices involving food grade materials in transport).
Mr. Chen then sent written messages that contained disparaging allegations to Diverse’s customers. Mr. Chen stated that he believed that customers needed to understand Diverse’s concerning activities. However, in his communications, Mr. Chen also included details of the outstanding amounts owed to him directly by Diverse.
Following these messages to customers, Diverse sent a cease and desist letter to Mr. Chen, advising that Diverse was contemplating a defamation action. Mr. Chen responded, threatening that he would go to news and media sources with his information on Diverse’s concerning practices.
Diverse then sued Mr. Chen for defamation. On the within motion, Mr. Chen moved to dismiss the action as a Strategic Litigation Against Public Participation (“SLAPP”), arguing that his warnings to customers were a matter of public concern.
Law and Analysis: Anti-SLAAP and the Public Interest
Justice Morgan reviewed the test pursuant to section 137.1 of the Courts of Justice Act. Section 137.1(3) provides that a defendant can have a proceeding dismissed if they can satisfy the Court that the proceeding arises from an expression relating to a matter of public interest.
Justice Morgan noted that an anti-SLAPP motion is meant to be efficient and economical. A motion court is encouraged to “cut to the chase” and focus on “what is really going on”. In the analysis, Justice Morgan followed this guidance.
In the anti-SLAPP context, the question of public interest is whether “some segment of the community would have a genuine interest in receiving information on the subject” or would have a “genuine stake in knowing” about what the defendant had to say[1].
There is no single test for identifying the public interest. Whether the expression relates to a matter of public interest is meant to be broad and liberal, and the public interest in the expression must be genuine. Further, it is not enough to simply make reference to public interest or to something that may arouse curiosity.
The burden rests with the moving party to establish whether its expression relates to a matter of public interest. Justice Morgan noted that, at the heart of the expression between Mr. Chen and Diverse, was a private employment/interest payment dispute. The alleged public interest about Diverse’s tank cleaning practices appeared to be a façade for the real message – that Mr. Chen was seeking money owed from Diverse.
Justice Morgan noted that safety in a trucking company’s operations could certainly qualify as a matter of public interest, as well as financial honesty. However, the public aspect must be genuine, not disguised as a debt collection method.
Mr. Chen’s counsel argued that a monetary dispute has a public interest aspect, as Diverse’s clientele has an interest in knowing about mistreatment of its employees. However, Justice Morgan noted that, if the Court were to adopt Mr. Chen’s view, every claim of money owing would easily be made into a public interest issue. Despite Mr. Chen’s allegations of a safety issue, at the heart of his threat was seeking money paid to him, which was not a genuine issue of public interest. Justice Morgan believed that to accept Mr. Chen’s position would turn the anti-SLAAP provisions into a vehicle for abuse.
As such, Justice Morgan concluded that Diverse’s defamation claim was not a SLAPP suit.
In response to Mr. Chen’s motion, Diverse’s motion record focused on the final stage of the analysis under section 137.1(4)(b) – that the public interest in permitting the proceeding to continue outweighed the public interest in protecting the expression (presuming that the initial public interest hurdle had been passed).
Justice Morgan noted that the record also demonstrated that Diverse would have easily meet its burden establishing that Mr. Chen’s statements about it were false, indefensible and harmful to its business operations. For example, Mr. Chen had ultimately acknowledged that he was not aware of any actual incidents of contamination involving Diverse’s tank truck, despite making these statements to Diverse’s customers.
Disposition
Ultimately, there is no public interest in the form of debt collection. Mr. Chen’s motion was dismissed. Justice Morgan invited the parties to make written submissions on costs.
Takeaway: The Purpose of Anti-SLAAP as a Screening Device
The Anti-SLAPP policy was put in place to address the issue of lawsuits initiated against individuals that speak out or take a position in a public debate on an issue of public interest. Legal proceedings that fit the definition of a SLAAP are brought in order to silence groups or citizens who are speaking out on public issues, especially in environmental, municipal or consumer issues. The legislation was designed to eliminate intimidation, not to foster it. The Court noted that the provisions are not meant to end legal redress for those targeted with demands to be paid coupled with the publication of false and damaging accusations.
[1] 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 (CanLII), [2020] 2 SCR 587 at para 27.