A simpler, faster way to handle defamation actions

Defamation Law /
Howard Winkler
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By Paul Russell, LegalMatters Staff • If Ontario wants to reduce the number of defamation suits that are launched it should take a lesson from the United Kingdom and Australia, says Toronto defamation lawyer Howard Winkler.

“The Ontario government implemented the current anti-SLAPP (strategic lawsuits against public participation) legislation in an effort to protect expressions related to matters of public interest. And by doing that, reduce the number of defamation cases brought in the province,” says Winkler, principal and founder of Winkler Law.

“While the first goal has been somewhat achieved, the anti-SLAPP law has resulted in a proliferation of litigation within the legislation,” he explains. “The jury is still out on whether it has had the effect of reducing the number of defamation cases brought.”

Winkler says the Supreme Court of Canada has stated the essence of the legislation is the “balancing of interests,” adding that “one of the most important components is the issue of serious harm that is caused or likely to be caused by the expression.”

Plaintiffs must show they suffered ‘serious harm’

“The U.K. and Australia have taken a different approach to attempting to limit the number of defamation actions,” he says. “And that is to require a plaintiff to show as an element of the cause of action that they have suffered or will suffer serious harm as a result of the expression complained of.”

Winkler says this provision is in s.10A of the Defamation Act of New South Wales and s.1 of the Defamation Act in the United Kingdom.

“The provisions are similar and quite simple,” he says. “A party to defamation proceedings can apply to the court to have the ‘serious harm’ element determined before the trial of the proceedings commences.”

When it comes to corporations, serious harm can only be caused by financial loss, Winkler says.

“Under these provisions, the court has only one narrow issue to consider on a preliminary basis,” Winkler says. “Compare that with Ontario’s anti-SLAPP laws, which takes a multi-layered approach to assessing a court action, including a consideration of the merits of the defence.

“The U.K. and Australian approach is much simpler, faster and more encompassing,” he adds. “If Ontario adopted this type of provision, that would certainly achieve the goal of protecting freedom of expression while reducing litigation.”

Winkler says another benefit of this provision is how broad it is.

Would apply to all defamation actions

“Anti-SLAPP legislation only applies to expressions related to a matter of public interest, which is a subset of the entirety of defamation proceedings,” he says. “The U.K. and Australian legislation applies to every defamation action.”

If Ontario adopted the United Kingdom and Australian approach, that would capture most of the defamation cases in a much simpler, less litigious way than the current anti-SLAPP legislation, Winkler predicts.

He says he is hopeful that Ontario will add a provision to the Libel and Slander Act requiring parties to show serious harm before proceeding with a court action.

“Given that these provisions have national application in both the U.K. and in Australia, I would expect that most provinces would enact similar provisions if Ontario created it,” Winkler says.

“And if we had this provision, people would likely stop resorting to the cumbersome anti-SLAPP legislation and rely on this provision, which is a simpler and more elegant way of limiting what seems to be a proliferation of defamation actions.”