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Appellate Litigation

In September of last year, we wrote about a situation that had been making headlines, in which the owner of a medical diagnostic clinic in Guelph had filed a $6 million defamation claim against a local married couple, SEB and KEB. The claim arose out of the fact that SEB had shared tweets made by the plaintiff, along with her own commentary urging members of the LGBTQIA+ community to avoid the plaintiff’s business.

The original tweets, as written by the plaintiff and shared from his business’s Twitter account, contained offensive terms for various members of the LGBTQIA+ community and opinions which the defendant had interpreted as homophobic. During Pride Month in 2021, SEB retweeted the defendant’s tweets in order to call attention to the content. Her commentary also included complaints that she and others were forced to travel outside of Guelph to seek diagnostic services as the plaintiff’s clinic was the only one available nearby.

Just this month, the matter was heard by the Ontario Superior Court of Justice and was dismissed as being strategic litigation against public participation, or SLAPP.

Court Hears Two Related Actions Simultaneously

While the claim we discussed in our previous blog post was directed at the married couple, the plaintiff also launched a second, related action. The defendants in the second claim were the executive director and executive assistant of Guelph Family Health (hereinafter referred to as “GFH”), a collective of health care providers including physicians, registered nurses, dieticians, pharmacists, and counsellors, which often referred patients to the plaintiff’s imaging clinic. After reading SEB’s tweets, which included screenshots of the plaintiff’s original tweets, GFH composed an email, including screenshots of SEB’s tweets, which they sent to their network of medical professionals. The purpose of the email was to call attention to the plaintiff’s original tweets while reminding the network that Guelph Family Health was “committed to diversity, anti-oppression, and inclusion”.

As a result of this email, at least one physician in the network indicated in writing that he would no longer refer patients to the plaintiff’s business. Both sets of defendants filed motions to dismiss the plaintiff’s claims as SLAPP claims under s. 137 of the Courts of Justice Act. The court heard both matters together.

Proving an Anti-SLAPP Motion Under s. 137 of the Courts of Justice Act

The Defendants’ “Threshold Burden”

The onus shifts between defendant and plaintiff when a court is considering an anti-SLAPP motion to dismiss a claim. First, the defendant(s) must demonstrate that the litigation has arisen from an expression related to a matter of public interest. In this case, the court was satisfied that both SEB’s tweets and GFH’s email each met the definition of “expressions”. Further, the bulk of the content of the tweets and the email included verbatim references to the plaintiff’s original tweets, which referred specifically to both the Prime Minister of Canada and the Mayor of Toronto. As the Court said, “[t]here is no reason to tweet commentary on public figures of that stature, including in the crude language utilized by the Plaintiff, if not to delve into the arena of public interest and public debate”.

Further, the defendants’ tweets and email were intended to serve as public service announcements, to call attention to the plaintiff’s views and in the case of GFH, to distance themselves from those views. Concerning SEB’s tweets, the intended public service was to warn others, particularly those in the LGBTQIA+ community, that the owner of the business appeared to harbour negative beliefs about them.

The Plaintiff’s Onus to Demonstrate “Substantial Merit”

Once the defendants had met their burden, the onus then shifted to the plaintiff to establish that his case had substantial merit. To demonstrate that the claim of defamation had substantial merit, the plaintiff was required to address three issues:

  1. That the words in question referred to the plaintiff
  2. That the words in question were broadcast to at least one person besides the plaintiff
  3. That the words in question would tend to lower the plaintiff’s reputation in the eye of a reasonable person

The first two issues were easily met, and so the last one remaining was the issue of whether SEB’s tweets and GFH’s email would have lowered the plaintiff’s reputation in the eyes of a reasonable person. Again, this was not a difficult issue to prove, with the Court noting that:

Although most of the damage is done by [the plaintiff]’s own words, re-tweeting and forwarding his rude and pejorative tweets, with an accompanying sentence that draws further attention to their rudeness and distasteful message, cannot help but lower the professional and personal reputation among [the plaintiff]’s peers and clientele.

Was there a valid defence?

With the plaintiff successfully establishing that his defamation claim had substantial merit, the onus then shifted back to the defendants to demonstrate there was a valid defence to the defamation suit. Similar to the plaintiff’s requirement to show their claim has substantial merit, the defendants must only demonstrate that their defence has a “reasonable chance of success”.

In this case, the defendants argued that political debate on a medium such as Twitter, constitutes fair comment and that the content of their tweets and email with respect to the plaintiff’s tweets, served as commentary rather than reportage of facts. The Court agreed, saying:

[The plaintiff] jumped into the turbulent river of Twitter commentary with some vulgarly worded observations that touched a nerve with the Defendants. He got it back as good as he gave it and got wet in the process. In the context of Twitter, there is every reason to believe that what [the defendants] doled back to him was fair comment.

Both of the plaintiff’s claims were dismissed.

For Exceptional Legal Representation in Libel and Defamation Matters Contact Milosevic & Associates in Toronto 

If you are an individual or organization and believe that defamatory comments have been made about you in the media or online, or if you have been accused of making defamatory statements, contact the highly knowledgeable defamation, libel and slander lawyers at Milosevic & Associates as soon as possible.  Our goal is to immediately protect you, your reputation, and your livelihood. Call us at 416-916-1387 or contact us online.