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Appellate Litigation

The Ontario Court of Appeal (ONCA) in Bondfield Construction Company Limited v. The Globe and Mail Inc. has again had to deal with an appeal from a SLAPP decision of the Ontario Superior Court of Justice (“ONSC”). SLAPP stands for Strategic Lawsuits Against Public Participation or Gag Proceedings which can potentially be dismissed under s. 137.1 of the Courts of Justice Act (“CJA”).

The Facts

The Globe and Mail (“Globe”) was a national newspaper. It had published a series of articles dealing with the successful construction bid of “Bondfield” to build a new medical facility. The articles connected Bondfield’s president with a senior executive at the awarding hospital. Bonfield’s president sued the Globe for defamation on the grounds that their articles falsely alleged a corrupt relationship between the two men which led to the awarding of the contract. The Globe responded with the defences of “fair comment” and “responsible communication”.

SLAPP Motion

The Globe brought a successful motion pursuant to s. 137.1 of the CJA to dismiss the claim on the basis that it had been brought to silence them on a matter of significant public importance. The decision of the ONSC was released before the ONCA had released their decisions on the meaning and proper application of the SLAPP provisions. These decisions included Pointes and Platnick v. Bent.

ONCA Analysis

On a SLAPP motion, the defendant has to first show that their expression(s) related to a matter of public interest. That onus had been met here and was not in dispute.

At that point, the burden shifted to Bonfield to prove that:

  • There were grounds to believe that his claim had “substantial merit” (s. 137.1(4)(a)(i));
  • There were grounds to believe that the Globe did not have a “valid defence” (s. 137.1(4)(a)(ii))
  • The harm suffered or likely to be suffered by Bondfield as a result of the articles was sufficiently serious that the public interest in allowing the lawsuit to continue outweighed the public interest in protecting the Globe’s freedom of expression (s. 137.1(4)(b))

Substantial Merit

The motions judge found as follows:

[T]he average Globe reader would almost inevitably conclude that [Bondfield’s President] was a fraudster who undermined the fairness and integrity of the … procurement process. The reader would further conclude that Bondfield had won its bid as a result of its relationship and collusion. [Emphasis added.]

This clearly was a finding of substantial merit to the claim which was not challenged on appeal.

No Valid Defence

This was a major issue in the appeal. The motions judge found that the Globe had an arguable defence of “fair comment” or at this stage, one that could go either way. This was accepted by the ONCA. The motions judge, however, was found to have incorrectly interpreted this subsection as requiring Bondfield to establish that the Globe had no valid defence, one that could not possibly succeed. This error was reversed on appeal so Bondfield had now met the first two hurdles.

Weighing the Public Interest

The motions judge found the balancing favoured Bondfield. The ONCA decided to make its own assessment although they came to the same conclusion. They began with the question they formulated in Platnick v. Bent – Does this claim have the hallmarks of a classic SLAPP? They concluded it did not as there was no history of Bondfield using litigation, or its threat, to silence its critics. There was no imbalance of power between the two litigants. There is no evidence of a punitive or revengeful purpose to the lawsuit. Finally, Bondfield has a potentially large damage claim. These conclusions resulted in a finding that the harm to Bondfield was serious enough to outweigh the public interest in allowing the Globes expression.

At Milosevic & Associates, our team of Toronto corporate commercial lawyers regularly represent clients in complex commercial litigation matters ranging from straightforward contract and partnership disputes to complex multi-party commercial claims including dealing with claims of oppression. Over the years, our team of exceptional litigators has seen it all and has successfully fought for our clients’ rights. Our impressive track record speaks for itself.  Call us at 416-916-1387 or contact us online for a consultation.