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Appellate Litigation

We previously wrote about defamation actions brought by a Guelph medical diagnostic clinic and its owner in relation to a series of tweets that allegedly cast them in a negative light.  In the tweets, the defendant, “SEB,” made statements suggesting that the plaintiff supported homophobia and that gay residents in the City had to seek healthcare diagnostics elsewhere.  SEB also tweeted out screenshots of previously deleted tweets of the plaintiff.   In response, the plaintiff owner denied that his clinic discriminated against gay people.   

The plaintiffs subsequently brought a defamation claim against SEB.  They also brought a defamation claim against the Executive Director and Executive Assistant of the Guelph Family Health Team, a group whose members included physicians who referred patients to the plaintiff clinic, after those individuals circulated an allegedly defamatory email to the group’s members. The email in question attached screenshots of SEB’s tweets, including the plaintiff’s previously deleted tweets, reiterating the Guelph Family Health Team’s commitment to inclusion and diversity.  

The Ontario Superior Court considered motions brought by the defendants to dismiss the plaintiffs’ actions based on section 137.1 of the Courts of Justice Act – namely, Ontario’s Anti-SLAPP provisions.  The defendants succeeded in their motions; however, the matter was appealed, and in Mondal v. Kirkconnell, the Ontario Court of Appeal recently granted the appeal in part.

Legal Test for Anti-SLAPP Dismissal of Defamation Claim

It is worth re-iterating Ontario’s Anti-SLAPP legislation’s general objectives and requirements.  As the Court of Appeal pointed out, section 137.1 of the Courts of Justice Act is a procedural motion “designed to allow defendants to have strategic or abusive actions – typically defamation proceedings – dismissed at an early stage to protect the public interest in freedom of expression.”  It is not intended to discourage legitimate defamation claims.  The section puts the initial onus on a defendant to satisfy a judge that the lawsuit in question has arisen from an expression made by the defendant that relates to a matter of public interest.  If the defendant meets this threshold, a court must dismiss the lawsuit unless the plaintiff meets two hurdles.  The first is the “merits-based” hurdle, which requires the plaintiff to satisfy a judge that there are grounds to believe that the lawsuit has substantial merit and that the defendant has no valid defence.  The second is known as the “public interest” hurdle. It requires the plaintiff to satisfy a judge that the harm that has been or is likely to be suffered by the plaintiff due to the defendant’s expression is sufficiently serious that the public interest in permitting the lawsuit to continue outweighs the public interest in protecting that expression.  If the plaintiff meets these hurdles, the motion is dismissed, and the lawsuit can continue.

Defamation on the Twitter Platform

The Court of Appeal began its analysis by considering the threshold question of whether the plaintiff’s defamation lawsuit arose from an expression made by the defendants that related to a matter of public interest.  The Court noted that the comments of the motions judge had suggested that the “quality” of the expression was relevant to this initial question.  Specifically, the Court noted comments of the motions judge implying that, by communicating on Twitter, the plaintiff had consented to the risk of being defamed.  The Court expressly rejected this reasoning and reiterated that standards of behaviour on social media were irrelevant to an Anti-SLAPP analysis.  As the Court stated, “Social media is not a defamation-free zone.”

The “Merits-Based” Hurdle

The Court moved on to consider the “merits-based” hurdle.  The motions judge found grounds to believe the expression was defamatory, which was not appealed.  However, the Court of Appeal focused significantly on the second part of the “merits-based” hurdle, which required that the plaintiff satisfy a judge that there were grounds to believe the defendant had no valid defence to the defamation claim.  The primary defence in the issue was that of fair comment, which we previously wrote about.  It is important to remember that even if the defence of fair comment can be established, it will be defeated if there is proof that the defendant was actuated by malice. The Court, therefore, noted that the plaintiffs could meet their burden at the “merits-based” stage by establishing grounds to believe either that (a) the defendants could not meet the requirements of a fair comment defence or (b) even if the defendant could establish that defence, it would be defeated by malice.  The Court emphasized that all that was required at this stage was a determination that there was a basis in the record and the law for concluding that the asserted defences would not succeed.

Grounds to Believe That Malice Would Defeat SEB’s Fair Comment Defence

Ultimately, the Court concluded that there were grounds to believe SEB’s fair comment defence would not succeed since she had tweeted screenshots of tweets the plaintiff had deleted months earlier.  The Court’s view supported the argument that “her actions were motivated by spite or ill-will,” especially in light of her Twitter history.  Thus, while the plaintiff might ultimately not succeed at trial in establishing SEB had acted with malice, it was enough to clear the “merits-based” hurdle.  Conversely, the Court noted that no such grounds existed in relation to the defendants in the other action since they had had an honest belief in the factual foundation of the email they had circulated.  As the Court pointed out, that email did not speak to the factual accuracy of the plaintiff’s deleted tweets; it merely drew attention to them.  Accordingly, their defence of fair comment could not fail on the grounds of malice.  Therefore, the dismissal of the plaintiff’s action against the Executive Director and Executive Assistant was affirmed.

The “Public Interest” Hurdle

Since the plaintiffs successfully met the “merits-based” hurdle against SEB, the Court of Appeal considered the “public interest” hurdle in relation to that action.  At that stage of the analysis, the burden is on the plaintiff to establish that the public interest in permitting a proceeding to continue outweighs the public interest in protecting the defendant’s expression.  The question of whether there was a public interest in permitting the defamation action to proceed against SEB was to be determined regarding the harm likely suffered by the plaintiffs due to SEB’s expression.  At this stage, all that was required was for the plaintiffs to provide evidence permitting a court to draw “an inference of likelihood in respect of the existence of the harm” and a causal link between the expression and the harm.  The Court concluded it was reasonable to draw such an inference in the circumstances.  However, considering the public interest in protecting SEB’s expression required looking not only at the quality of that expression but “the motivation behind it.”  While SEB argued that her tweets were a kind of public service announcement intended to draw attention to something she believed to be unfair, the Court of Appeal noted this was not a case that involved “political debate on a matter of public policy between participants in the political process.”  Instead, it was a dispute between private parties that involved “apparently gratuitous personal attacks and vitriol” together with a likelihood that substantial harm may have occurred.  As such, there was less public interest in protecting SEB’s expression.  Accordingly, the plaintiffs were deemed to have cleared the “public interest” hurdle.  SEB’s motion under section 137.1 was therefore dismissed.

The Mondal case should be a cautionary tale.  Comments traded publicly on social media are less likely to be treated differently than in any other forum. They are just as susceptible to claims of defamation.  Parties using any such public forum should always exercise restraint, particularly where the reputation of another might be affected.

Contact The Professional Liability Lawyers At Milosevic & Associates For Outstanding Legal Representation In Defamation, Libel And Slander Matters

The professional liability lawyers Milosevic & Associates in Toronto provide strategic and practical advice to clients regarding defamation claims.  If you have been subjected to defamatory comments, our litigation team will provide representation to protect you and your reputation.  Contact us to find out how we can help you at 416-916-1387 or by visiting us online.