ANTISLAPP PROCEEDINGS:UNION EXECUTIVE ELECTIONS

ANTI SLAPP PROCEEDINGS:UNION EXECUTIVE ELECTIONS

The following two anti slapp proceedings which involved union executive elections were dismissed by the courts and the libel actions were allowed to proceed to trial

Labourers’ International Union of North America, Local 183 v. Castellano, 2020 ONCA 71 (CanLII)

The appellant appeals from the motion judge’s dismissal of his motion under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (commonly referred to as “the anti-SLAPP provision”), as well as the judgment allowing the respondents’ action for defamation on a motion for summary judgment and granting injunctive relief.

labourers’ International Union of North America, Local 183 v. Castellano, 2019 ONSC 506 (CanLII)

While both the Ontario Court of Appeal and the Superior Court of Justice in this case found that the expression related to a matter of public , they found that the claim had substantial merit and that there were no valid defences .

[11]????The motion judge’s weighing of the competing interests under s. 137.1 is entitled to deference on appeal, absent an identifiable legal error, or a palpable and overriding factual error: 1704604 Ontario Ltd., at para. 97. As this court noted in 1704604 Ontario Ltd., at para. 97, “[d]eference is important, as there is no reason to think that a simple recalibration of the competing interests by an appeal court will provide a more accurate assessment.”

[12]????In this case, we see no error in the motion judge’s balancing of the competing interests that would permit appellate intervention.

[13]????The motion judge properly considered the issue of the reputational damage to the respondents. In particular, she found that the appellant’s expression had cast “serious aspersions upon their individual characters”. The motion judge found the respondents’ general damages, as exacerbated by the appellant’s malice, to have been more than nominal, partly in the light of the positions held by the individual plaintiffs. It was not necessary for her to find monetary damages because “a serious libel does not always manifest itself in financial losses”: Montour v. Beacon Publishing Inc., 2019 ONCA 246, at para. 31, leave to appeal refused, [2019] S.C.C.A. No. 154.

This underlined conclusion of the Court of Appeal is very important in Anti slapp proceedings when the plaintiff is alleging serious harm .

[14]????Similarly, the motion judge carefully considered the public interest in the expressive content of the appellant’s posts, including the videos. She did not, as the appellant submits, limit her analysis to the added commentary to the videos. She found that the posts involved gratuitous personal attacks, as well as vulgar and offensive language, and did not address any governance or leadership issues in any constructive or cogent way.

IT IS IMPORTANT TO REMEMBER THAT THE LANGUAGE USED AND THE MOTIVES OF THE DEFENDANT ARE NOT IMPORTANT IN THE DETERMINATION OF WHETHER THE EXPRESSION RELATED TO A MATTER OF PUBLIC INTEREST WHEREAS UNDER S137.1 (3) THESE FACTORS ARE RELEVANT IN THE WEIGHING OF THE PUBLIC INTERESTS IN S137.1 (4)(b)

She therefore found that the public interest in the appellant’s expression was low. Her conclusion that the harm suffered by the respondents outweighed the public interest in protecting the appellant’s expression was well-grounded in the evidence and free from error.

Nanda v. McEwan, 2020 ONCA 431 (CanLII) involved statement mades by the defendant in his unsuccessful campaign for election as president of the Toronto Local of the Canadian Union of Postal Workers (“CUPW”). In this case the Chief Justice of Ontario held that though the expression related to a matter of public interest , the plaintiff had overcome the merits hurdle and shown that the harm likely to have been suffered by the plaintiff was serious enough that , the public interest in permitting the proceeding to continue outweighed the public interest in protecting the expressions at issue.

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]

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]