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The publicity surrounding a defamation lawsuit in British Columbia shows that attempts to silence a critic with legal action can sometimes backfire, says Toronto lawyer Howard Winkler.
“Plaintiffs must think long and hard about the consequences of bringing a defamation lawsuit when the expression is in relation to a matter of public interest,” says Winkler, principal and founder of Winkler Law. “What is playing out in B.C. is a cautionary tale for the rest of the country.”
According to a news story, a prominent developer launched a defamation lawsuit against a former council candidate for tweets that questioned his relationship with a local mayor. The former candidate responded by asking that the suit be dismissed under a provincial law protecting people from strategic lawsuits against public participation, or so-called anti-SLAPP legislation.
The story states tweets indicated the developer “surreptitiously wields power and influence over elected representatives,” specifically around plans to replace the city’s RCMP detachment with a municipal police force.
In his seven-page affidavit, the former candidate doubles down on his defence of truth saying the developer told him he had already decided who should be the chief of the new police force. He also alleges the developer boasted he was paying cleaning staff at city hall to retrieve items from councillors’ garbage cans.
Sometimes better not to say anything
“This a good example where the plaintiff might have been better off to just keep his head down and let this pass,” Winkler tells LegalMattersCanada.ca. “The only reason the former candidate was able to file the affidavit was that the developer was suing him. He was entitled to defend himself, and did so with the benefit of the anti-SLAPP legislation.”
Much of the evidence in the affidavit may never have come out if the developer had not launched the defamation suit, he says, but now those damaging claims can and have been publicly reported.
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“By virtue of the anti-SLAPP legislation, the defendant now gets a free shot at the plaintiff, Winkler says. “While the best results for the defendant would be a dismissal of the action, he has also been given an opportunity to pursue his attack on the plaintiff.
“This arguably does way more damage to the developer than the original tweet,” he adds. “You have to wonder if he now regrets starting this action.”
The hearing to deal with the anti-SLAPP application was heard on Oct. 28.
Significant cost consequences
If the suit is dismissed under the anti-SLAPP legislation, the developer will have a significant cost liability.
“That will that add insult to injury, which is the purpose of anti-SLAPP,” he says. “It is specifically designed to force plaintiffs to consider whether what they are complaining about relates to a matter of public interest and if so to think very carefully about suing for defamation.”
If the lawsuit is dismissed due to the anti-SLAPP legislation, Winkler says that would mean the court decided the public interest in the matter outweighs the harm or the potential harm done to the developer.
Two provinces have anti-SLAPP laws
In 2015, Ontario enacted sections 137.1 to 137.5 of the Courts of Justice Act in an effort to curtail SLAPPs, or lawsuits intended to intimidate and silence critics who cannot afford costly and time-consuming litigation. It gives judges the power to dismiss lawsuits if the defendants can convince the court that the action arises from an expression that relates to a matter of public interest.
British Colombia is the only other province with such legislation, but Winker says he expects more provincial governments will develop similar laws in the future.
The Supreme Court of Canada took anti-SLAPP legislation into consideration in reaching judgments in two decisions this year, including one in which Winkler represented the respondent.
