ANTISLAPP PROCEEDINGS:MUNICIPAL ELECTIONS

ANTISLAPP PROCEEDINGS:MUNICIPAL ELECTIONS?

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

Court of Appeal for Ontario — Ontario

In the course of her unsuccessful campaign for city councillor, the defendant M referred in a press release to her opponent A's dated sexual assault conviction. She justified that reference by stating that the conviction was part of a disturbing pattern of bullying and intimidation by A. She repeated those statements on a radio program broadcast by the defendant Corus. M's husband and W, a member of her campaign team, both referred to bullying by politicians, without naming A, in single Facebook posts which pre-dated M's press release, and S, another member of M's campaign team, tweeted twice about bullying and intimidation by A after the press release. A sued M, M's husband, W, S and Corus for damages for defamation based on the allegations of bullying and intimidation. The defendants brought a motion to dismiss the action under s. 137.1 of the Courts of Justice Act ("CJA"). The motion was dismissed. The defendants appealed.

Held, the appeal should be allowed. and the libel actions dismissed

In the course of an election campaign, there is a high premium placed on the ability of candidates and members of the public to openly and freely express points of view about the opposing candidates, often in strong terms and sometimes in language that becomes personal. Absent any harm or risk of harm, the public interest in allowing A to pursue his defamation claim against S could not outweigh S's right to express his opinion on A's suitability as a candidate for municipal council, a matter of considerable public interest. The claim against S should have been dismissed under s. 137.1(4)(b). M's statements about A reached a much wider audience than S's. However, A's electoral success strongly suggested that any harm to his reputation was minimal. There is a very strong public interest in promoting freedom of expression by candidates during the electoral process. A had not shown that the public interest in allowing him to continue with his claim against M outweighed the public interest in protecting M's right to express her opinions about another candidate in the course of an election campaign. The claim against M should also have been dismissed under s. 137.1(4) (b) of the CJA. EMPHASIS ADDED

Papa v Zeppieri, 2018 ONSC 7068 (CanLII)

The plaintiff was a town councillor in the Town of Richmond Hill.?In the fall of 2014, he was running for re-election.?The defendant lives in Richmond Hill.?It is clear from the record on the motion that the defendant was concerned about a number of development issues, and that he disagreed with positions taken by the plaintiff in his role as a town councillor.

?The statements pleaded in the claim as being defamatory are statements made by the defendant leading up to and during the 2014 municipal election campaign.?It is clear from the record that the statements were part of a campaign by the defendant to encourage people not to vote for the plaintiff’s re-election.

[29]???????In two of the companion cases to Pointes, Justice Doherty affirms the important public interest value of speech during election campaigns, in particular, speech directed at a candidate’s suitability to hold elected office: Able Translations Ltd. v. Express International Translations Inc., 2018 ONCA 690 at para. 19; Armstrong v. Corus Entertainment Inc., 2018 ONCA 689 at para. 31.

[30]???????I turn then to the defendant’s expression in this case.?I have no difficulty in concluding that each of the four statements that are the basis of the plaintiff’s cause of action relate to matters of public interest.?They are statements by a resident of a municipality interested in development issues, about a councillor who is running for as a candidate for re-election, about the candidate’s record on development issues within the jurisdiction of the municipality, made during the election campaign (and in the case of the February 19, 2014 email, in the lead up to the election campaign).?

[31]???????This type of election speech clearly relates to matters of public interest.?Other residents of the town – the voters – have a public interest in hearing speech about the record of a candidate for re-election.?In my view, this is not a case where whether the speech relates to matters of public interest is a close call.?It is well within the type of speech discussed in Grant v. Torstar Corp. at paras. 99-109.

[32]???????I note as well that the record is clear that the defendant was very involved in speaking about development issues in the community, by way of attendance at meetings, letters, and speaking to the media.?The record is also clear that the development issues that are the subject matter of the statements at issue were the subject of repeated discussion at Richmond Hill Town council.?Both of these bodies of evidence provide further support that the defendant’s statements relate to matters of public interest.

Conclusion on whether claim should be dismissed

[80]?????......., I am satisfied that the defendant’s expression at issue relates to matters of public interest.?The plaintiff has not satisfied me that his proceeding has substantial merit, or that the defendant has no valid defence.?Further, I find that the evidence of harm to the plaintiff from the defendant’s speech is exceedingly weak.?I am satisfied that the public interest in allowing the proceeding to continue is greatly outweighed by the public interest in protecting the defendant’s expression at issue.

[81]???????The motion is granted.?The plaintiff’s action is dismissed.

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]