Another cautionary tale for plaintiffs: defamation lawsuits can be costly

By Paul Russell, LegalMatters Staff • A recent Ontario Superior Court decision involving Ontario’s anti-SLAPP legislation shows why plaintiffs must carefully assess the cause of their damages before launching and pursuing a defamation lawsuit against defendants who write or speak about matters of important public interest, says Toronto lawyer Howard Winkler.

“This assessment is critical considering the significant costs that can be awarded against a plaintiff under the legislation,” says Winkler, principal and founder of Winkler Law.

The case involves a former Toronto radio personality who sued a magazine, its managing editor and a journalist over an article that he claimed unfairly depicted his previous relationship with a female TV news reporter. In his defamation lawsuit, the man claimed the article was “a malicious hit piece perpetrated against me by the defendants and/or the accuser in the criminal proceedings and/or others (i.e. confidential “source”) working with the defendants,” according to court documents.

The judgment, which found in favour of the defendants, notes that before the article was published, the man “faced a series of criminal charges, which included a charge of criminal harassment under s. 264(2)(b) of the Criminal Code of Canada as well as a charge of harassing communications under s. 372(4). At a preliminary hearing [he] was discharged on the charge of criminal harassment, but was committed to trial on the harassing communications charge as well as other charges which related to his conduct following the laying of the initial charges. He subsequently pleaded guilty on June 8, 2018 to several of the charges, including the harassing communications charge.”

‘Considerable media attention’

It also noted that the “laying of the criminal charges as well as his guilty plea attracted considerable media attention.”

The defendants responded by bringing a motion pursuant to s. 137.1 of the Courts of Justice Act to dismiss the action, the section of law often referred to as Ontario’s anti-SLAPP (Strategic Lawsuit Against Public Participation) legislation. The law is designed to protect and promote expression on matters of public interest.

The judge agreed that the action should be dismissed, noting: “What is clear in this case is that the damage to [the man’s] career and reputation occurred well prior to and independent of the publication of the [magazine] article … based on the circumstances in this case, the right to free expression must take precedence over the plaintiff’s personal interest to proceed with this litigation.”

Importantly, when assessing the value of the defendants’ expression against any reputational damage to the plaintiff, the judge found, “Gender based abuse is recognized as a serious social problem in our society. It is generally understood that there are systemic barriers to reporting this type of activity. The consequences of gendered based harassment are too often severe and the public interest in expression on this topic is high.”

Application of anti-SLAPP law

“This decision, with one exception, is a good example of the application of the anti-SLAPP law as interpreted by the Ontario Court of Appeal,” Winkler tells LegalMattersCanada.ca, as the judgment clearly sets out what is required for an anti-SLAPP motion to succeed.

He explains that once a defendant has persuaded the court that the expression – in this case a magazine article that focused on gendered based harassment – was in relation to a matter of public interest, the onus switches to the plaintiff to satisfy each of three tests set out in the legislation or the case is dismissed.

Winkler says those tests are: there are grounds to believe that the proceeding has substantial merit, there are grounds to believe that the defendant has no valid defence, and the harm suffered or likely to be suffered by the plaintiff is sufficiently serious that the public interest in permitting the lawsuit to continue outweighs the public interest in protecting the expression.

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He says the man met the first test but failed on the second.

“Since the judge found that the defence of fair comment was beyond question, the plaintiff failed to satisfy the second part of the test. The hearing should have stopped there because each defence raised is a complete defence,” Winkler says, adding the motion judge then unnecessarily went on to consider the balancing of interests before dismissing the motion.

Error in the law’s application

“This was an error in the application of the law, but it had no impact on the end result,” he says.

Winkler says he believes the only ground for an appeal is to argue that the motion judge overstepped his power in terms of looking at and assessing the evidence.

“The Ontario Court of Appeal has suggested judges should be restricted in their weighing of the evidence, so if there is any potential attack on the decision, it would be that the motion judge went too far in his fact-finding and exceeded the jurisdiction contemplated by the legislation,” he says. “Still, this is a strong decision and I would suggest an appeal of it would fail.”

Winkler notes “anti-SLAPP legislation has the effect of encouraging plaintiffs to take a hard look at whether their action is the type that should proceed, achieving that in two ways.

“First, the legislation encourages defendants to bring dismissal motions. Under normal circumstances, a judge will not order an unsuccessful defendant on a s. 137.1 motion to pay the plaintiff’s costs,” he says. “Second, if the defendant is successful on the motion, then, under normal circumstances, the plaintiff will be ordered to pay the defendant’s full indemnity costs.”

Hefty bill to pay

Winkler says by way of example, the plaintiff in this case will likely face a hefty bill to cover the other side’s expenses for what turned out to be a four-day hearing.

“I imagine that the cost award will be well in excess of $100,000,” he says. “The financial consequences of unsuccessfully resisting this dismissal motion are going to be significant.”

Winkler and his partner Eryn Pond are counsel in the first defamation anti-SLAPP decision being considered by the Supreme Court of Canada. The appeal was argued in the fall of 2019 and the decision remains under reserve. The Supreme Court of Canada will ultimately have the final word on the proper interpretation of the anti-SLAPP legislation.