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No harm in free speech

The Supreme Court of Canada will hear two appeals that will have significant implications for the media and the public’s ability to rely on anti-SLAPP laws.

Freedom of expression

Two cases that will be argued before the Supreme Court of Canada could have far-reaching implications for media organizations and anyone willing to make comments in the public interest.

At issue in both appeals, granted leave from the Court of Appeal for Ontario last month, is the scope of Ontario's Protection of Public Participation Act, which came into force in 2015.

The law was passed following an advisory panel's recommendations aimed at reducing the incidence of lawsuits aimed at stifling public participation, known as strategic lawsuits against public participation – or SLAPP – effective in that they silence critics by threatening to burden them with the costs of maintaining a legal defence. Defamation lawsuits, which can be hard to defend, make an ideal vehicle for SLAPPS.

"The Supreme Court has the opportunity to interpret the new legislation in a way that recognizes the importance of free speech and protects the press and others from litigation—including the significant expense of litigation—that threatens to silence their voices," said defamation and media lawyer Julia Lefebvre.

Neither case involves media organizations directly. The first case, Platnick v. Bent, arose from a defamation lawsuit launched by a medical practitioner against a lawyer in an insurance matter. The second, 1704604 Ontario Ltd. v. Pointes Protection, deals with a dispute between a land developer and a group of Sault Ste. Marie residents, opposed to a residential development.

And for the most part, media companies have made limited use of anti-SLAPP laws in Ontario. According to Justin Safayeni, a litigator at Stockwoods in Toronto, of the two dozen cases that have been brought forward under the law in Ontario, only a couple have involved the media.

Even so, the ability of defendants to successfully bring forward anti-SLAPP motions is very much in question.

"The legislation on its face seems like a powerful tool for defendants," says Safayeni. "But as the courts decided how to interpret and apply the legislation, it became increasingly clear that it would be difficult to win anti-SLAPP motions."

The language of the act, he says, was meant to be straightforward. "For this legislation to be effective, it has to have teeth," Safayeni said. "And with the language that was used in drafting this legislation, it certainly suggests that there was an intention for there to be a pretty high bar before plaintiffs can proceed with defamation claims against defendants that have made expressions on a matter of public interest."

But the courts are still struggling, according to both Safayeni and Lefevbre, with how to protect individuals and organizations from spurious defamation claims. One of the challenges the courts face is that motions are brought early in the life of the case. It's hard at that stage to determine the merit of the allegedly defamatory speech or whether the moving party really has no valid defence in the proceeding.

"I'm hoping that there is a tilt back in favour of what I think the language of the statute supports and requires," Safayeni says. He hopes that the Supreme Court will recognize that the legislative remedy needs to be applied rigorously to be effective. That means that courts "need to have some comfort in ending the right case at an early juncture," he says.

The key question for the Supreme Court will be to determine whether the approach taken by the appellate court approach drifted too far from achieving the law's purpose.

The Court of Appeal for Ontario also raised other issues, namely that "public interest" is not defined in the legislation.

That's important because, in identifying the merit of an anti-SLAPP motion, the court must weigh the harm suffered by the plaintiff against the value of freedom of expression in the public interest. That requirement to strike a balance is an equation that's unique to this legislation, says Safayeni.

For now, he sees a trend where courts willing are inclined to tilt the balance in favour of the plaintiff, even where the expression is highly defamatory, but without any evidence of damages or harm suffered.