ANTISLAPP PROCEEDINGS INVOLVING ELECTIONS IN ONTARIO AND BRITISH COLUMBIA : LIBEL ACTIONS SLAPPED DOWN #1

ANTISLAPP PROCEEDINGS INVOLVING ELECTIONS IN ONTARIO AND BRITISH COLUMBIA : SOME LIBEL ACTIONS ARISING OUT OF ELECTIONS SLAPPED DOWN - THE PUBLIC INTEREST

Elections arouse strong passions and strong words . As the Australians say "The writs are flying so there must be an election ". For over forty years as a defamation lawyer in Ontario, rarely an election Federal, provincial or municipal has passed that I have not been consulted on a potential libel action by a plaintiff or defendant . They are usually resolved quite quickly if sensible experienced defamation counsel are engaged

Since 2016 , the anti slapp legislation has added a new dimension with the antislapp motions launched in response to these libel actions Since then there have been several which I will cover in the next several blogs .

First I need to dispel a few misconceptions about Canadian libel law that appear to permeate the thinking of members of the public and astonishingly the thinking of some Canadian lawyers

1 The FIRST AMENDMENT of the American Constitution has no application to Canadian libel law

2 The NEW YORK TIMES V SULLIVAN defence has no application to Canadian libel law

3 The Public Figure defence in US libel law has no application to Canadian libel law

4 The Malice used by plaintiffs to defeat the NY TIMES Public Figure defence is different from presumed malice and express malice in Canadian libel law , though US libel law relies upon these versions of these forms of these forms of malice

5 Anonymous speech is not protected in Canada by the Charter of Rights and Freedoms

6 s2b of the Canadian Charter of Rights and Freedoms does not provide a express defence to Libel actions in Canada

The public interest plays an important role in the anti slapp legislation as follows

137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,

(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

Order to dismiss

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

No dismissal

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

UNDERLINING ADDED

Our Text book on ANTI SLAPP PROCEEDINGS devotes several chapters to PUBLIC INTEREST concepts .Not surprisingly in many of the ANTI SLAPP cases involving elections the Courts found that the expressions related to matters of public interest see for example

Papa v Zeppieri, 2018 ONSC 7068 (CanLII)

Armstrong v. Corus Entertainment Inc., 2018 ONCA 689 (CanLII)

Amorosi v. Barker, 2019 ONSC 4717 (CanLII)

Miceli v. Swinton, 2019 ONSC 2926 (CanLII)

Able Translations Ltd. v Express International Translations Inc., 2016 ONSC 6785 (CanLII) Able Translations Ltd. v. Express International Translations Inc., 2018 ONCA 690 (CanLII)

Rizvee v. Newman, 2017 ONSC 4024 (CanLII)

David Potts is a Toronto barrister specializing in defamation law .He has completed writing a text book on Anti slapp Proceedings for Irwin law . Anti slapp proceedings are changing the defamation landscape in previously unimaginable ways. They are designed to be quick, cheap and simple.In fact they are costly , complex and protracted with countless pitfalls and mine fields for the unwary. He can be reached at [email protected]